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Exhibit 4.1
EXECUTION COPY
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ASSOCIATES CREDIT CARD MASTER NOTE TRUST
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ASSOCIATES CREDIT CARD MASTER NOTE TRUST
Issuer
and
THE BANK OF NEW YORK
Indenture Trustee
AMENDED AND RESTATED
MASTER INDENTURE
Dated as of April 1, 2000
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE PROVISIONS*
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1)...................................................... 6.11
(a)(2)...................................................... 6.11
(a)(3)...................................................... 6.10
(a)(4)...................................................... Not Applicable
(a)(5)...................................................... 6.11
(b)......................................................... 6.08, 6.11
(c)......................................................... Not Applicable
311(a)......................................................... 6.12
(b)......................................................... 6.12
(c)......................................................... Not Applicable
312(a)......................................................... 7.01, 7.02(a)
(b)......................................................... 7.02(b)
(c)......................................................... 7.02(c)
313(a)......................................................... 7.04
(b)......................................................... 7.04
(c)......................................................... 7.03, 7.04
(d)......................................................... 7.04
314(a)......................................................... 3.09, 7.03(a)
(b)......................................................... 3.06
(c)(1)...................................................... 2.11, 8.09(c), 12.01(a)
(c)(2)...................................................... 2.11, 8.09(c), 12.01(a)
(c)(3)...................................................... 2.11, 8.09(c), 12.01(a)
(d)(1)...................................................... 2.11, 8.09(c), 12.01(b)
(d)(2)...................................................... Not Applicable
(d)(3)...................................................... Not Applicable
(e)......................................................... 12.01(a)
315(a)......................................................... 6.01(b)
(b)......................................................... 6.02
(c)......................................................... 6.01(c)
(d)......................................................... 6.01(d)
(d)(1)...................................................... 6.01(d)
(d)(2)...................................................... 6.01(d)
(d)(3)...................................................... 6.01(d)
(e)......................................................... 5.14
316(a)(1)(A)................................................... 5.12
316(a)(1)(B)................................................... 5.13
316(a)(2)...................................................... Not Applicable
316(b)......................................................... 5.08
317(a)(1)...................................................... 5.04
317(a)(2)...................................................... 5.04(d)
317(b)......................................................... 5.04(a)
318(a)......................................................... 12.07
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*This reconciliation and tie shall not, for any purpose, be deemed to be part of
the within indenture.
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions................................................................................2
Section 1.02. Other Definitional Provisions.............................................................15
ARTICLE II
THE NOTES
Section 2.01. Form Generally............................................................................16
Section 2.02. Denominations.............................................................................17
Section 2.03. Execution, Authentication and Delivery....................................................17
Section 2.04. Authenticating Agent......................................................................17
Section 2.05. Registration of and Limitations on Transfer and Exchange of Notes.........................19
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes................................................20
Section 2.07. Persons Deemed Owners.....................................................................21
Section 2.08. Appointment of Paying Agent...............................................................21
Section 2.09. Access to List of Noteholders' Names and Addresses........................................22
Section 2.10. Cancellation..............................................................................22
Section 2.11. Release of Collateral.....................................................................23
Section 2.12. New Issuances.............................................................................23
Section 2.13. Book-Entry Notes..........................................................................25
Section 2.14. Notices to Clearing Agency or Foreign Clearing Agency.....................................26
Section 2.15. Definitive Notes..........................................................................26
Section 2.16. Global Note...............................................................................26
Section 2.17. Meetings of Noteholders...................................................................27
Section 2.18. Uncertificated Classes....................................................................27
ARTICLE III
COVENANTS OF ISSUER
Section 3.01. Payment of Principal and Interest.........................................................27
Section 3.02. Maintenance of Office or Agency...........................................................27
Section 3.03. Money for Note Payments to Be Held in Trust...............................................28
Section 3.04. Existence.................................................................................29
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Section 3.05. Protection of Trust.......................................................................29
Section 3.06. Opinions as to Collateral.................................................................30
Section 3.07. Performance of Obligations; Servicing of Receivables......................................30
Section 3.08. Negative Covenants........................................................................32
Section 3.09. Statements as to Compliance...............................................................33
Section 3.10. Issuer May Consolidate, Etc., Only on Certain Terms.......................................33
Section 3.11. Successor Substituted.....................................................................35
Section 3.12. No Other Business.........................................................................35
Section 3.13. No Borrowing..............................................................................35
Section 3.14. Servicer's Obligations....................................................................35
Section 3.15. Guarantees, Loans, Advances and Other Liabilities.........................................35
Section 3.16. Capital Expenditures......................................................................36
Section 3.17. Removal of Administrator..................................................................36
Section 3.18. Restricted Payments.......................................................................36
Section 3.19. Notice of Events of Default...............................................................36
Section 3.20. Further Instruments and Acts..............................................................36
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of this Indenture..............................................36
Section 4.02. Application of Trust Money................................................................38
ARTICLE V
PAY OUT EVENTS, DEFAULTS AND REMEDIES
Section 5.01. Pay Out Events............................................................................38
Section 5.02. Events of Default.........................................................................38
Section 5.03. Acceleration of Maturity; Rescission and Annulment........................................39
Section 5.04. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.................40
Section 5.05. Remedies; Priorities......................................................................42
Section 5.06. Optional Preservation of the Collateral...................................................44
Section 5.07. Limitation on Suits.......................................................................44
Section 5.08. Unconditional Rights of Noteholders to Receive Principal and Interest.....................45
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Section 5.09. Restoration of Rights and Remedies........................................................45
Section 5.10. Rights and Remedies Cumulative............................................................46
Section 5.11. Delay or Omission Not Waiver..............................................................46
Section 5.12. Rights of Noteholders to Direct Indenture Trustee.........................................46
Section 5.13. Waiver of Past Defaults...................................................................46
Section 5.14. Undertaking for Costs.....................................................................47
Section 5.15. Waiver of Stay or Extension Laws..........................................................47
Section 5.16. Sale of Receivables.......................................................................47
Section 5.17. Action on Notes...........................................................................48
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of the Indenture Trustee...........................................................48
Section 6.02. Notice of Pay Out Event or Event of Default...............................................50
Section 6.03. Rights of Indenture Trustee...............................................................51
Section 6.04. Not Responsible for Recitals or Issuance of Notes.........................................52
Section 6.05. May Hold Notes............................................................................52
Section 6.06. Money Held in Trust.......................................................................52
Section 6.07. Compensation, Reimbursement and Indemnification...........................................52
Section 6.08. Replacement of Indenture Trustee..........................................................53
Section 6.09. Successor Indenture Trustee by Merger.....................................................54
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.........................54
Section 6.11. Eligibility; Disqualification.............................................................55
Section 6.12. Preferential Collection of Claims Against.................................................56
Section 6.13. Tax Returns...............................................................................56
Section 6.14. Representations and Covenants of the Indenture Trustee....................................56
Section 6.15. Custody of the Collateral.................................................................57
ARTICLE VII
NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders....................57
Section 7.02. Preservation of Information; Communications to Noteholders................................57
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Section 7.03. Reports by Issuer.........................................................................58
Section 7.04. Reports by Indenture Trustee..............................................................58
ARTICLE VIII
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 8.01. Collection of Money.......................................................................59
Section 8.02. Rights of Noteholders.....................................................................59
Section 8.03. Establishment of Collection Account and Special Funding Account...........................59
Section 8.04. Collections and Allocations...............................................................62
Section 8.05. Shared Principal Collections and Shared Transferor Principal Collections..................63
Section 8.06. Additional Withdrawals from the Collection Account........................................64
Section 8.07. Allocation of Collateral to Series or Groups..............................................64
Section 8.08. Excess Finance Charge Collections.........................................................64
Section 8.09. Release of Collateral; Eligible Loan Documents............................................65
Section 8.10. Opinion of Counsel........................................................................65
ARTICLE IX
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of Noteholders....................................66
Section 10.02. Supplemental Indentures with Consent of Noteholders.......................................68
Section 10.03. Execution of Supplemental Indentures......................................................69
Section 10.04. Effect of Supplemental Indenture..........................................................69
Section 10.05. Conformity With Trust Indenture Act.......................................................69
Section 10.06. Reference in Notes to Supplemental Indentures.............................................70
ARTICLE XI
TERMINATION
Section 11.01. Termination of Trust......................................................................70
Section 11.02. Final Distribution........................................................................70
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Section 11.03. Termination Distributions.................................................................71
Section 11.04. Defeasance................................................................................71
ARTICLE XII
MISCELLANEOUS
Section 12.01. Compliance Certificates and Opinions etc..................................................73
Section 12.02. Form of Documents Delivered to Indenture Trustee..........................................74
Section 12.03. Acts of Noteholders.......................................................................75
Section 12.04. Notices, Etc. to Indenture Trustee and Issuer.............................................76
Section 12.05. Notices to Noteholders; Waiver............................................................76
Section 12.06. Alternate Payment and Notice Provisions...................................................77
Section 12.07. Conflict with Trust Indenture Act.........................................................77
Section 12.08. Effect of Headings and Table of Contents..................................................77
Section 12.09. Successors and Assigns....................................................................77
Section 12.10. Separability..............................................................................77
Section 12.11. Benefits of Indenture.....................................................................78
Section 12.12. Legal Holidays............................................................................78
Section 12.13. GOVERNING LAW.............................................................................78
Section 12.14. Counterparts..............................................................................78
Section 12.15. Trust Obligation..........................................................................78
Section 12.16. No Petition...............................................................................79
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This AMENDED AND RESTATED MASTER INDENTURE, dated as of April
1, 2000 (herein, as amended, modified or supplemented from time to time as
permitted hereby, called this "INDENTURE"), between Associates Credit Card
Master Note Trust, a business trust organized under the laws of the State of
Delaware (herein, together with its permitted successors and assigns, called the
"ISSUER" or the "TRUST"), and The Bank of New York, a New York banking
corporation, as indenture trustee (herein, together with its successors in the
trusts hereunder, called the "INDENTURE TRUSTEE"). This Indenture may be
supplemented at any time and from time to time by an indenture supplement in
accordance with Article X hereof (an "INDENTURE SUPPLEMENT," and any Indenture
Supplement together with this Indenture and amendments hereof collectively
referred to as the "AGREEMENT"). If a conflict exists between the terms and
provisions of this Indenture and any Indenture Supplement, the terms and
provisions of the Indenture Supplement shall be controlling with respect to the
related Series.
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of
this Indenture to provide for an issue of its asset backed notes (the "NOTES")
as provided in this Indenture. All covenants and agreements made by the Issuer
herein are for the benefit and security of the Noteholders. The Issuer is
entering into this Indenture, and the Indenture Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
Simultaneously with the delivery of this Indenture the Issuer
is entering into the Transfer and Servicing Agreement with Associates Credit
Card Receivables Corp., a Delaware corporation, as Transferor (the
"TRANSFEROR"), and Associates National Bank (Delaware), a national banking
association, as Servicer (in such capacity, the "SERVICER"), pursuant to which
(a) the Transferor will convey to the Issuer all of its right, title and
interest in, to and under the Receivables, which the Transferor will have
received from Associates Credit Card Services, Inc. (in such capacity, a
"SELLER") pursuant to the ACCS Receivables Purchase Agreement which Associates
Credit Card Services, Inc. will have received from Associates National Bank
(Delaware) or another Account Owner (in such capacity, each a "SELLER") pursuant
to a Receivables Purchase Agreement and (b) the Servicer will agree to service
the Receivables and make collections thereon on behalf of the Noteholders.
Under each Receivables Purchase Agreement, each Transferor
Purchase Agreement and the Transfer and Servicing Agreement, Receivables arising
in the Accounts from time to time will be conveyed thereunder to the Issuer.
GRANTING CLAUSES
The Issuer hereby Grants to the Indenture Trustee, for the
benefit of the Holders of the Notes, all of the Issuer's right, title and
interest, whether now owned or hereafter acquired, in, to and under (a) the
Receivables, (b) Interchange and Recoveries related to and all money,
instruments, investment property and other property distributed or distributable
in respect of (together with all earnings, dividends, distributions, income,
issues, and profits relating to) the
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Receivables pursuant to the terms of the Transfer and Servicing Agreement, this
Indenture and any Indenture Supplement, (c) all Eligible Investments and all
money, investment property, instruments and other property on deposit from time
to time in, credited to or related to the Collection Account, the Series
Accounts and the Special Funding Account (including any subaccounts of such
account), and all interest, dividends, earnings, income and other distributions
from time to time received, receivable or otherwise distributed or distributable
thereto or in respect thereof (including any accrued discount realized on
liquidation of any investment purchased at a discount), (d) all rights,
remedies, powers, privileges and claims of the Issuer under or with respect to
any Series Enhancement or the Transfer and Servicing Agreement (whether arising
pursuant to the terms of such Series Enhancement or the Transfer and Servicing
Agreement or otherwise available to the Issuer at law or in equity), including,
without limitation, the rights of the Issuer to enforce such Series Enhancement
or the Transfer and Servicing Agreement, and to give or withhold any and all
consents, requests, notices, directions, approvals, extensions or waivers under
or with respect to such Series Enhancement or the Transfer and Servicing
Agreement to the same extent as the Issuer could but for the assignment and
security interest granted to the Indenture Trustee for the benefit of the
Noteholders, (e) all money, accounts, general intangibles, chattel paper,
instruments, documents, goods, investment property, deposit accounts,
certificates of deposit, letters of credit, and advices of credit belonging to
the Issuer, (f) all other property of the Issuer, (g) all present and future
claims, demands, causes and chose in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds,
products, rents, receipts or profits of the conversion, voluntary or
involuntary, into cash or other property, all cash and non-cash proceeds, and
other property consisting of, arising from or relating to all or any part of any
of the foregoing, and (h) any proceeds of the foregoing; in each case, excluding
the Transferor Interest and all amounts distributable to the Holders of any
Certificates pursuant to the terms of any Transaction Document) (collectively,
the "COLLATERAL").
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal of,
interest on and other amounts with respect to, the Notes is limited by recourse
only to the Collateral.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Whenever used in this Indenture, the following words and
phrases shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms.
"ACCS" shall mean Associates Credit Card Services, Inc., a
Delaware corporation, and its successors and permitted assigns.
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"Accumulation Period" shall mean, with respect to any Series,
or any Class within a Series, a period following the Revolving Period during
which Collections of Principal Receivables are accumulated in an account for the
benefit of the Noteholders of such Series or Class within such Series, which
shall be the controlled accumulation period, the principal accumulation period,
the early accumulation period, the optional accumulation period, the limited
accumulation period or other accumulation period, in each case as defined with
respect to such Series in the related Indenture Supplement.
"Act" shall have the meaning specified in subsection 12.03(a).
"Administration Agreement" shall mean the Administration
Agreement, dated as of April 1, 2000 among the Issuer and the Administrator, as
the same may be amended, supplemented or otherwise modified from time to time.
"Administrator" shall mean ANB, or its permitted successors
and assigns, or any successor Administrator under the Administration Agreement.
"Adverse Effect" shall have the meaning specified in the
Transfer and Servicing Agreement.
"AFCC" shall mean Associates First Capital Corporation, a
Delaware corporation, and its successors and permitted assigns.
"Aggregate Investor Percentage" shall mean, with respect to
Principal Receivables, Finance Charge Receivables and Defaulted Receivables, as
the case may be, as of any date of determination, the sum of such Investor
Percentages of all Series of Notes issued and outstanding on such date of
determination; provided, however, that the Aggregate Investor Percentage shall
not exceed 100%.
"Agreement" shall mean this Amended and Restated Master
Indenture, as the same may be amended, supplemented or otherwise modified from
time to time, including, with respect to any Series or Class, the related
Indenture Supplement.
"Amortization Period" shall mean, with respect to any Series,
or any Class within a Series, a period following the Revolving Period during
which Collections of Principal Receivables are distributed to Noteholders, which
shall be the controlled amortization period, the principal amortization period,
the rapid amortization period, the optional amortization period, the limited
amortization period or other amortization period, in each case as defined with
respect to such Series in the related Indenture Supplement.
"ANB" shall mean Associates National Bank (Delaware), a
national banking association, and its successors and permitted assigns.
"Applicants" shall have the meaning specified in Section 2.09.
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"Authorized Officer" shall mean:
(a) with respect to the Issuer, any officer of the Owner
Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized
Officers, containing the specimen signature of each such Person,
delivered by the Owner Trustee to the Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time
thereafter) and any Vice President or more senior officer of the
Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement and who is identified on the
list of Authorized Officers (containing the specimen signatures of such
officers) delivered by the Administrator to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
(b) with respect to the Transferor, any officer of the
Transferor who is authorized to act for the Transferor in matters
relating to the Transferor and who is identified on the list of
Authorized Officers, containing the specimen signature of each such
Person, delivered by the Transferor to the Indenture Trustee on the
Closing Date (as such list may be modified or supplemented from time to
time thereafter).
(c) with respect to the Servicer, any officer of the Servicer
who is authorized to act for the Servicer in matters relating to the
Servicer and who is identified on the list of Authorized Officers,
containing the specimen signature of each such Person, delivered by the
Servicer to the Indenture Trustee on the Closing Date (as such list may
be modified or supplemented from time to time thereafter).
"Bearer Notes" shall have the meaning specified in Section
2.01.
"Beneficial Owner" shall mean, with respect to a Book-Entry
Note, the Person who is the owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or Foreign Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency or Foreign Clearing
Agency (directly as a Clearing Agency Participant or as an Indirect Participant,
in accordance with the rules of such Clearing Agency or Foreign Clearing
Agency).
"Book-Entry Notes" shall mean beneficial interests in the
Notes, ownership and transfers of which shall be made through book entries by a
Clearing Agency or Foreign Clearing Agency as described in Section 2.13.
"Class" shall mean, with respect to any Series, any one of the
classes of Notes of that Series.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended, and serving as clearing agency for a Series or Class of
Book-Entry Notes.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
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"Clearstream" shall mean Clearstream Banking, societe anonyme,
a professional depository incorporated under the laws of Luxembourg, and its
successors.
"Closing Date" shall mean, with respect to any Series, the
closing date specified in the related Indenture Supplement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Collateral" shall have the meaning specified in the Granting
Clause of this Indenture.
"Collection Account" shall have the meaning specified in
Section 8.03.
"Commission" shall mean the Securities and Exchange Commission
and its successors in interest.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be administered, which office at date of the execution of this Indenture
is located at 000 Xxxxxxx Xxxxxx, Xxxxx 12 East, New York, New York 10286, or at
such other address as the Indenture Trustee may designate from time to time by
notice to the Noteholders and the Transferor, or the principal corporate trust
office of any successor Indenture Trustee (the address of which the successor
Indenture Trustee will notify the Noteholders and the Transferor); provided that
for the purposes of Section 3.02, the address of any such office shall be in the
Borough of Manhattan of the City of New York.
"Coupon" shall have the meaning specified in Section 2.01.
"Default" shall mean any occurrence that is, or with notice or
the lapse of time or both would become, an Event of Default.
"Defeasance" shall have the meaning specified in subsection
11.04(a).
"Defeased Series" shall have the meaning specified in
subsection 11.04(a).
"Definitive Notes" shall mean Notes in definitive, fully
registered form.
"Deposit Date" shall mean each day on which the Servicer
deposits Collections in the Collection Account.
"Determination Date" shall mean, unless otherwise specified in
the Indenture Supplement for a particular Series, the earlier of the third
Business Day and the fifth calendar day (or if the fifth calendar day is not a
Business Day, then the preceding Business Day) preceding the seventeenth day of
each calendar month.
"Distribution Date" shall mean, with respect to any Series,
the date specified in the applicable Indenture Supplement.
"Dollars," "$" or "U.S. $" shall mean United States dollars.
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"DTC" shall mean The Depository Trust Company.
"Eligible Institution" shall mean any depository institution
(which may be the Owner Trustee or the Indenture Trustee) organized under the
laws of the United States or any one of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank), which
depository institution at all times (a) is a member of the FDIC and (b) has (i)
a long-term unsecured debt rating acceptable to the Rating Agencies or (ii) a
certificate of deposit rating acceptable to the Rating Agencies. Notwithstanding
the previous sentence, any institution the appointment of which satisfies the
Rating Agency Condition shall be considered an Eligible Institution. If so
qualified, the Servicer may be considered an Eligible Institution for the
purposes of this definition.
"Eligible Investments" shall mean the following instruments,
investment property, or other property, other than securities issued by or
obligations of ACCS:
(a) direct obligations of, or 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, including the District
of Columbia (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 Trust's
investment or contractual commitment to invest therein, the short-term
debt rating of such depository institution or trust company shall be in
the highest rating category of Standard & Poor's, of Xxxxx'x and, if
rated by Fitch, of Fitch;
(c) commercial paper or other short-term obligations (having
original or remaining maturities of no more than thirty (30) days)
(including short-term obligations of AFCC and Associates Corporation of
North America) having, at the time of the Trust's investment or
contractual commitment to invest therein, a rating in the highest
rating category of Standard & Poor's, of Xxxxx'x and, if rated by
Fitch, of Fitch;
(d) demand deposits, time deposits and certificates of deposit
which are fully insured by the FDIC having, at the time of the Trust's
investment therein, a rating in the highest rating category of Standard
& Poor's, of Xxxxx'x and, if rated by Fitch, of Fitch;
(e) bankers' acceptances (having original maturities of no
more than 365 days) issued by any depository institution or trust
company referred to in clause (b) above;
(f) money market funds having, at the time of the Trust's
investment therein, a rating in the highest rating category of Standard
& Poor's, of Xxxxx'x and, if rated by Fitch, of Fitch (including funds
for which the Indenture Trustee or any of its Affiliates is investment
manager or advisor);
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(g) time deposits (having maturities not later than the
succeeding Distribution Date) other than as referred to in clause (d)
above, with a Person the commercial paper of which has a credit rating
satisfactory to Standard & Poor's, Xxxxx'x and Fitch; or
(h) any other investment of a type or rating that satisfies
the Rating Agency Condition.
"Enhancement Agreement" shall mean any agreement, instrument
or document governing the terms of any Series Enhancement or pursuant to which
any Series Enhancement is issued or outstanding.
"Euroclear Operator" shall mean Xxxxxx Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System.
"Event of Default" shall have the meaning specified in Section
5.02.
"Excess Allocation Series" shall mean a Series that, pursuant
to the Indenture Supplement therefor, is entitled to receive certain excess
Collections of Finance Charge Receivables, as more specifically set forth in
such Indenture Supplement. If so specified in the Indenture Supplement for a
Group of Series, each such Series may be an Excess Allocation Series only for
the other Series in such Group.
"Excess Finance Charge Collections" shall have the meaning
specified in Section 8.08.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Finance Charge Shortfalls" shall have the meaning specified
in Section 8.08.
"Final Maturity Date" shall mean, with respect to any Series,
the final maturity date for such Series specified in the related Indenture
Supplement.
"Foreign Clearing Agency" shall mean Clearstream and the
Euroclear Operator.
"GAAP" means generally accepted accounting principles in the
United States of America in effect from time to time.
"Global Note" shall have the meaning specified in Section
2.16.
"Grant" means to mortgage, pledge, bargain, warrant, alienate,
remise, release, convey, assign, transfer, create, and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of the Collateral or of any other agreement
or instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive
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anything that the Granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Group" shall mean, with respect to any Series, the group of
Series, if any, in which the related Indenture Supplement specifies such Series
is to be included.
"Indenture" shall mean this Amended and Restated Master
Indenture, dated as of April 1, 2000, between the Issuer and the Indenture
Trustee, as the same may be amended, supplemented or otherwise modified from
time to time.
"Indenture Supplement" shall mean, with respect to any Series,
a supplement to the Indenture, executed and delivered in connection with the
original issuance of the Notes of such Series pursuant to Section 10.01, and an
amendment to the Indenture executed pursuant to Sections 10.01 or 10.02, and, in
either case, including all amendments thereof and supplements thereto.
"Indenture Trustee" shall mean The Bank of New York, in its
capacity as trustee under the Agreement, its successors in interest and any
successor indenture trustee under the Agreement.
"Independent" shall mean, when used with respect to any
specified Person, that the Person (a) is in fact independent of the Issuer, any
other obligor upon the Notes, the Transferor and any Affiliate of any of the
foregoing Persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor, the
Transferor or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Transferor or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar functions.
"Independent Certificate" shall mean a certificate or opinion
to be delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 12.01, made
by an Independent appraiser or other expert appointed by an Issuer Order, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
"Indirect Participant" shall mean other Persons such as
securities brokers and dealers, banks and trust companies that clear or maintain
a custodial relationship with a participant of DTC, either directly or
indirectly.
"Invested Amount" shall mean, with respect to any Series and
for any date, an amount equal to the "Invested Amount" or "Adjusted Invested
Amount," as applicable, specified in the related Indenture Supplement.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended.
"Issuer" shall mean the Trust.
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"Issuer Order" and "Issuer Request" shall mean a written order
or request signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"Monthly Period" shall mean, with respect to each Distribution
Date, unless otherwise provided in an Indenture Supplement, the period from and
including the first day of the preceding calendar month to and including the
last day of such calendar month; provided, however, that the initial Monthly
Period with respect to any Series will commence on the Closing Date with respect
to such Series.
"New Issuance" shall have the meaning specified in subsection
2.12(a).
"Note Interest Rate" shall mean, as of any particular date of
determination and with respect to any Series or Class, the interest rate as of
such date specified therefor in the related Indenture Supplement.
"Note Owner" shall mean, with respect to a Book-Entry Note,
the Person who is the owner of such Book-Entry Note, as reflected on the books
of the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in accordance with the rules of such Clearing Agency).
"Note Register" shall have the meaning specified in Section
2.05.
"Noteholder" or "Holder" shall mean the Person in whose name a
Note is registered on the Note Register and, if applicable, the holder of any
Bearer Note, Global Note, or Coupon, as the case may be, or such other Person
deemed to be a "NOTEHOLDER" or "HOLDER" in any related Indenture Supplement.
"Notes" shall mean all Series of Notes issued by the Trust
pursuant to the Indenture and the applicable Indenture Supplement.
"Officer's Certificate" shall mean, unless otherwise specified
in this Indenture, a certificate delivered to the Indenture Trustee signed by
any Authorized Officer of the Issuer, Transferor, or Servicer, as applicable,
under the circumstances described in, and otherwise complying with, the
applicable requirements of Section 12.01.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel for, or an employee of, the Person providing the opinion and
who shall be reasonably acceptable to the Indenture Trustee; provided that a Tax
Opinion shall be an opinion of nationally recognized tax counsel.
"Outstanding" shall mean, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Transfer Agent and
Registrar or delivered to the Transfer Agent and Registrar for
cancellation;
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(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor, satisfactory to the Indenture Trustee, has been
made); and
(iii) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a Protected Purchaser;
provided that in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Issuer, any other
obligor upon the Notes, the Transferor, the Servicer or any Affiliate of any of
the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Notes that a Responsible Officer of the Indenture Trustee
actually knows to be so owned shall be so disregarded. Notes so owned that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's right so
to act with respect to such Notes and that the pledgee is not the Issuer, any
other obligor upon the Notes, the Transferor, the Servicer or any Affiliate of
any of the foregoing Persons. In making any such determination, the Indenture
Trustee may rely on the representations of the pledgee and shall not be required
to undertake any independent investigation.
"Outstanding Amount" means the aggregate principal amount of
all Notes Outstanding at the date of determination and, with respect to the
Notes of a particular Series, the aggregate principal amount of all Notes of
such Series which are Outstanding at the date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, not in
its individual capacity, but solely as owner trustee under the Trust Agreement,
its successors in interest and any successor owner trustee under the Trust
Agreement.
"Paired Series" shall mean (i) each Series which has been
paired with another Series (which Series may be prefunded or partially
prefunded), such that the reduction of the Invested Amount or Adjusted Invested
Amount of such Series results in the increase of the Invested Amount of such
other Series, as described in the related Indenture Supplements, and (ii) such
other Series.
"Participant" shall mean ACCS, together with its permitted
successors and assigns, under the Participation Agreement.
"Participation Agreement" shall mean the Associates Credit
Card Master Note Trust Participation Agreement, dated as of April 1, 2000,
between ACCR, as Transferor, and ACCS, as Participant, as the same may be
amended, supplemented or otherwise modified from time to time.
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"Pay Out Event" shall mean, with respect to any Series, a
Trust Pay Out Event or a Series Pay Out Event.
"Paying Agent" shall mean any paying agent appointed pursuant
to Section 2.08 and shall initially be the Indenture Trustee; provided that if
the Indenture Supplement for a Series so provides, a separate or additional
Paying Agent may be appointed with respect to such Series.
"Permitted Assignee" shall mean any Person who, if it were to
purchase Receivables (or interests therein) in connection with a sale thereof
pursuant to Sections 5.05(a) and 5.16, would not cause the Trust to be taxable
as a publicly traded partnership for federal income tax purposes.
"Principal Sharing Series" shall mean a Series that, pursuant
to the Indenture Supplement therefor, is entitled to receive Shared Principal
Collections. If so specified in the Indenture Supplement for a Group of Series,
each such Series may be Principal Sharing Series only for the other Series in
such Group.
"Principal Shortfalls" shall have the meaning specified in
subsection 8.05(a).
"Principal Terms" shall mean, with respect to any Series, (a)
the name or designation; (b) the initial principal amount (or method for
calculating such amount), the Invested Amount and the Required Transferor
Interest; (c) the Note Interest Rate for each Class of Notes of such Series (or
method for the determination thereof); (d) the payment date or dates and the
date or dates from which interest shall accrue; (e) the method for allocating
Collections to Noteholders; (f) the designation of any Series Accounts and the
terms governing the operation of any such Series Accounts; (g) the Servicing
Fee; (h) the issuer and terms of any form of Series Enhancements with respect
thereto; (i) the terms on which the Notes of such Series may be exchanged for
Notes of another Series, repurchased by the Transferor or remarketed to other
investors; (j) the Final Maturity Date; (k) the number of Classes of Notes of
such Series and, if more than one Class, the rights and priorities of each such
Class; (l) the extent to which the Notes of such Series will be issuable in
temporary or permanent global form (and, in such case, the depositary for such
global note or notes, the terms and conditions, if any, upon which such global
note may be exchanged, in whole or in part, for Definitive Notes, and the manner
in which any interest payable on a temporary or global note will be paid); (m)
whether the Notes of such Series may be issued in bearer form and any
limitations imposed thereon; (n) the priority of such Series with respect to any
other Series; (o) whether such Series will be part of a Group; (p) whether such
Series will be a Principal Sharing Series and whether such Series is entitled to
share Shared Transferor Principal Collections; (q) whether such Series will be
an Excess Allocation Series; (r) the Distribution Date; (s) whether such Series
will or may be a Paired Series and the Series with which it will be paired, if
applicable; and (t) any other terms of such Series.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
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"Protected Purchaser" shall have the meaning set forth in the
New York Uniform Commercial Code.
"Qualified Account" shall mean 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 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 unsecured, unguaranteed
senior debt securities of such depository institution shall have a credit rating
from each Rating Agency in one of its generic credit rating categories that
signifies investment grade.
"Rating Agency" shall mean, with respect to any outstanding
Series or Class, each rating agency, as specified in the applicable Indenture
Supplement, selected by the Transferor to rate the Notes of such Series or
Class.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have notified the Transferor, the
Servicer, the Owner Trustee and the Indenture Trustee in writing that such
action will not result in a reduction or withdrawal of the then existing rating
of any outstanding Series or Class with respect to which it is a Rating Agency
or, with respect to any outstanding Series or Class not rated by any Rating
Agency, the written consent of such Series or Class as specified in the
Indenture Supplement for such Series.
"Record Date" shall mean, with respect to any Distribution
Date, the last day of the calendar month immediately preceding such Distribution
Date unless otherwise specified for a Series in the related Indenture
Supplement.
"Redemption Date" shall mean, with respect to any Series, the
date or dates, if any, specified in the related Indenture Supplement.
"Registered Notes" shall have the meaning specified in Section
2.01.
"Required Transferor Interest" shall mean, with respect to any
date, an amount equal to the product of (i) the Required Transferor Percentage
and (ii) the aggregate amount of Principal Receivables.
"Required Transferor Percentage" shall mean 7%; provided,
however, that the Transferor may reduce the Required Transferor Percentage upon
(x) thirty (30) days prior notice to the Indenture Trustee and each Rating
Agency, (y) satisfaction of the Rating Agency Condition with respect thereto and
(z) delivery to the Indenture Trustee of a certificate of a Vice President or
more senior officer of the Transferor stating that the Transferor reasonably
believes that such reduction will not, based on the facts known to such officer
at the time of such certification, then or thereafter have an Adverse Effect;
provided further that the Required Transferor Percentage shall not at any time
be less than 2%.
"Responsible Officer" shall mean, when used with respect to
the Indenture Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee including any vice president, assistant vice president,
assistant treasurer, assistant secretary, trust officer or any other officer of
the Indenture Trustee customarily performing functions similar to those
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performed by the persons who at the time shall be such officers or to whom any
corporate trust matter is referred at the Corporate Trust Office because of such
officer's knowledge of and familiarity with the particular subject.
"Revolving Period" shall have, with respect to each Series,
the meaning specified in the related Indenture Supplement.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Seller" shall mean any of ANB or another Account Owner, in
its capacity as seller under the Receivables Purchase Agreement, or ACCS, in its
capacity as seller under the Transferor Purchase Agreement.
"Series" shall mean any series of Notes issued pursuant to
this Indenture and the related Indenture Supplement.
"Series Account" shall mean any deposit, trust, securities
escrow or similar account maintained for the benefit of the Noteholders of any
Series or Class, as specified in any Indenture Supplement.
"Series Enhancement" shall mean the rights and benefits
provided to the Trust or the Noteholders of any Series or Class pursuant to any
letter of credit, surety bond, cash collateral account, collateral invested
amount, spread account, reserve account, guaranteed rate agreement, maturity
liquidity facility, tax protection agreement, interest rate swap agreement,
interest rate cap agreement or other similar arrangement. The subordination of
any Series or Class to another Series or Class shall be deemed to be a Series
Enhancement.
"Series Enhancer" shall mean the Person or Persons providing
any Series Enhancement, other than (except to the extent otherwise provided with
respect to any Series in the Indenture Supplement for such Series) the
Noteholders of any Series or Class which is subordinated to another Series or
Class.
"Series Issuance Date" shall mean, with respect to any Series,
the date on which the Notes of such Series are to be originally issued in
accordance with Section 2.12 and the related Indenture Supplement.
"Series Pay Out Event" shall have, with respect to any Series,
the meaning specified pursuant to the related Indenture Supplement.
"Servicer" shall have the meaning specified in the Transfer
and Servicing Agreement.
"Shared Excess Finance Charge Collections" shall mean, with
respect to any Distribution Date, the aggregate amount for all outstanding
Series that the related Indenture Supplements specify are to be treated as
"Shared Excess Finance Charge Collections" for such Distribution Date.
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"Shared Principal Collections" shall have the meaning
specified in subsection 8.05(a).
"Shared Transferor Principal Collections" shall have the
meaning specified in subsection 8.05(b).
"Special Funding Account" shall have the meaning set forth in
Section 8.03.
"Special Funding Amount" shall mean the amount on deposit in
the Special Funding Account.
"Tax Opinion" shall mean, with respect to any action, an
Opinion of Counsel to the effect that, for federal income tax purposes, (a) such
action will not adversely affect the tax characterization as debt of the Notes
of any outstanding Series or Class that were characterized as debt at the time
of their issuance, (b) such action will not cause the Trust to be deemed to be
an association (or publicly traded partnership) taxable as a corporation and (c)
such action will not cause or constitute an event in which gain or loss would be
recognized by any Noteholder.
"Termination Proceeds" shall have the meaning specified in
subsection 11.02(c).
"Transaction Documents" shall mean, with respect to any Series
of Notes, the Certificate of Trust, the Trust Agreement, the Receivables
Purchase Agreements, the Transferor Purchase Agreements, the Transfer and
Servicing Agreement, this Indenture, the related Indenture Supplement, the
Administration Agreement and such other documents and certificates delivered in
connection therewith.
"Transfer Agent and Registrar" shall have the meaning
specified in Section 2.05.
"Transfer and Servicing Agreement" shall mean the Transfer and
Servicing Agreement, dated as of April 1, 2000, among the Transferor, the
Servicer and the Issuer, as the same may be amended, supplemented or otherwise
modified from time to time.
"Transfer Date" shall mean the Business Day immediately
preceding each Distribution Date.
"Transferor" shall have the meaning specified in the Transfer
and Servicing Agreement.
"Transferor Interest" shall mean on any date of determination
an amount equal to the difference between (a) the sum of (i) an amount equal to
the aggregate balance of Principal Receivables at the end of the day immediately
prior to such date of determination plus (ii) the Special Funding Amount at the
end of the day immediately prior to such date of determination minus (b) the
aggregated Invested Amounts with respect to all Series of Notes issued and
outstanding on such date of determination.
"Transferor Percentage" shall mean, on any date of
determination, when used with respect to Principal Receivables, Finance Charge
Receivables and Defaulted Receivables, a
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percentage equal to 100% minus the Aggregate Investor Percentage with respect to
such category of Receivables.
"Trust" shall mean the Associates Credit Card Master Note
Trust.
"Trust Agreement" shall mean the Trust Agreement relating to
the Trust, dated as of April 1, 2000, between ACCR and the Owner Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture
Act of 1939, as amended.
"Trust Pay Out Event" shall have, with respect to each Series,
the meaning specified in Section 5.01.
"Trustee Officer" shall mean, with respect to the Indenture
Trustee any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
the applicable Transaction Documents, and also, with respect to a particular
matter, any other officer, to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"UCC" shall have the meaning specified in the Transfer and
Servicing Agreement.
Section 1.02. Other Definitional Provisions.
(a) With respect to any Series, all terms used herein and not
otherwise defined herein shall have meanings ascribed to them in the Trust
Agreement, the Transfer and Servicing Agreement or the related Indenture
Supplement, as applicable.
(b) All terms defined in this Indenture shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Indenture and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Indenture or in any such certificate or other document, and
accounting terms partly defined in this Indenture or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under GAAP. To the extent that the definitions of accounting terms
in this Indenture or in any such certificate or other document are inconsistent
with the meanings of such terms under GAAP, the definitions contained in this
Indenture or in any such certificate or other document shall control.
(d) Any reference to each Rating Agency shall only apply to
any specific rating agency if such rating agency is then rating any outstanding
Series.
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(e) Unless otherwise specified, references to any amount as on
deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
(f) The words "HEREOF," "HEREIN," "HEREUNDER" and words of
similar import when used in this Indenture shall refer to this Indenture as a
whole and not to any particular provision of this Indenture; references to any
subsection, Section, Schedule or Exhibit are references to subsections,
Sections, Schedules and Exhibits in or to this Indenture unless otherwise
specified; and the term "INCLUDING" means "INCLUDING WITHOUT LIMITATION."
(g) Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Indenture Trustee.
"obligor" on the indenture securities means the
Issuer and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
Section 2.01. Form Generally.
Any Series or Class of Notes, together with the Indenture
Trustee's certificate of authentication related thereto, may be issued in bearer
form (the "BEARER NOTES") with attached interest coupons and a special coupon
(collectively, the "COUPONS") or in fully registered form (the "REGISTERED
NOTES") and shall be in substantially the form of an exhibit to the related
Indenture Supplement with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture or such
Indenture Supplement, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of such Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note. The terms of any Notes set forth in an exhibit to the
related Indenture Supplement are part of the terms of this Indenture, as
applicable.
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The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods, all as
determined by the officers executing such Notes, as evidenced by its execution
of such Notes.
Each Note will be dated the Closing Date and each Definitive
Note will be dated as of the date of its authentication.
Section 2.02. Denominations.
Except as otherwise specified in the related Indenture
Supplement and the Notes, each class of Notes of each Series shall be issued in
fully registered form in minimum amounts of $1,000 and in integral multiples of
$1,000 in excess thereof (except that one Note of each Class may be issued in a
different amount, so long as such amount exceeds the applicable minimum
denomination for such Class), and shall be issued upon initial issuance as one
or more Notes in an aggregate original principal amount equal to the applicable
Invested Amount for such Class or Series.
Section 2.03. Execution, Authentication and Delivery.
Each Note shall be executed by manual or facsimile signature
on behalf of the Issuer by an Authorized Officer.
Notes bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Issuer shall not be rendered invalid, notwithstanding the
fact that such individual ceased to be so authorized prior to the authentication
and delivery of such Notes or does not hold such office at the date of issuance
of such Notes.
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 Indenture Trustee for authentication and delivery, and the Indenture
Trustee shall authenticate and deliver such Notes as provided in this Indenture
or the related Indenture Supplement and not otherwise.
No Note shall be entitled to any benefit under this Indenture
or the applicable Indenture Supplement or be valid or obligatory for any
purpose, unless there appears on such Note a certificate of authentication
substantially in the form provided for herein or in the related Indenture
Supplement executed by or on behalf of the Indenture Trustee by the manual
signature of a duly authorized signatory, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
Section 2.04. Authenticating Agent.
(a) The Indenture Trustee may appoint one or more
authenticating agents with respect to the Notes which shall be authorized to act
on behalf of the Indenture Trustee in authenticating the Notes in connection
with the issuance, delivery, registration of transfer, exchange or repayment of
the Notes. Whenever reference is made in this Indenture to the authentication of
Notes by the Indenture Trustee or the Indenture Trustee's certificate of
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authentication, such reference shall be deemed to include authentication on
behalf of the Indenture Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Indenture Trustee by an authenticating
agent. Each authenticating agent must be acceptable to the Issuer and the
Servicer.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any power or any further act on the part of
the Indenture Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Indenture Trustee, the Issuer and the
Servicer. The Indenture Trustee may at any time terminate the agency of an
authenticating agent by giving notice of termination to such authenticating
agent and to the Issuer and the Servicer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an authenticating
agent shall cease to be acceptable to the Indenture Trustee or the Issuer and
the Servicer, the Indenture Trustee may promptly appoint a successor
authenticating agent. Any successor authenticating agent upon acceptance of its
appointment hereunder shall 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 shall be appointed
unless acceptable to the Issuer and the Servicer.
(d) The Issuer agrees to pay to each authenticating agent from
time to time reasonable compensation for its services under this Section 2.04.
(e) The provisions of Sections 6.01 and 6.04 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 2.04,
the Notes may have endorsed thereon, in lieu of or in addition to the Indenture
Trustee's certificate of authentication, an alternative certificate of
authentication in substantially the following form:
"This is one of the Notes described in the within-mentioned Agreement.
----------------------------------------
----------------------------------------
as Authenticating Agent
for the Indenture Trustee
By:
-------------------------------------
Authorized Signatory"
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Section 2.05. Registration of and Limitations on Transfer and
Exchange of Notes.
The Issuer shall cause to be kept a register (the "NOTE
REGISTER") in which the Issuer shall provide for the registration of Notes and
the registration of transfers of Notes. The Indenture Trustee initially shall be
the transfer agent and registrar (in such capacity, the "TRANSFER AGENT AND
REGISTRAR") for the purpose of registering Notes and transfers of Notes as
herein provided. Upon any resignation of any Transfer Agent and Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Transfer Agent and Registrar.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Transfer Agent and Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of a Transfer Agent and
Registrar and of the location, and any change in the location, of the Transfer
Agent and Registrar and Note Register. The Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Transfer Agent and Registrar by an officer
thereof as to the names and addresses of the Noteholders and the principal
amounts and numbers of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Transfer Agent and Registrar, to be maintained as
provided in Section 3.02, if the requirements of Section 8-401 of the UCC are
met, the Issuer shall execute, and upon receipt of such surrendered Note the
Indenture Trustee shall authenticate and deliver to the Noteholder, in the name
of the designated transferee or transferees, one or more new Notes (of the same
Series and Class) in any authorized denominations of like aggregate principal
amount.
At the option of a Noteholder, Notes may be exchanged for
other Notes (of the same Series and Class) in any authorized denominations and
of like aggregate principal amount, upon surrender of such Notes to be exchanged
at the office or agency of the Transfer Agent and Registrar. Whenever any Notes
are so surrendered for exchange, if the requirements of Section 8-401 of the UCC
are met, the Issuer shall execute, and upon receipt of such surrendered Note the
Indenture Trustee shall authenticate and deliver to the Noteholder, the Notes
which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall evidence the same obligations, evidence the same debt, and be
entitled to the same rights and privileges under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in a form satisfactory to the Indenture Trustee duly
executed by, the Noteholder thereof or its attorney-in-fact duly authorized in
writing, and by such other documents as the Indenture Trustee may reasonably
require.
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The registration of transfer of any Note shall be subject to
the additional requirements, if any, set forth in the related Indenture
Supplement.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Issuer and Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of such
Notes.
All Notes surrendered for registration of transfer and
exchange shall be canceled by the Issuer and delivered to the Indenture Trustee
for subsequent destruction without liability on the part of either. The
Indenture Trustee shall destroy the Global Note upon its exchange in full for
Definitive Notes and shall deliver a certificate of destruction to the
Transferor. Such certificate shall also state that a certificate or certificates
of each Foreign Clearing Agency referred to in the applicable Indenture
Supplement was received with respect to each portion of the Global Note
exchanged for Definitive Notes.
Unless otherwise set forth in an Indenture Supplement, the
preceding provisions of this Section 2.05 notwithstanding, the Issuer shall not
be required to make, and the Transfer Agent and Registrar need not register,
transfers or exchanges of Notes for a period of twenty (20) days preceding the
due date for any payment with respect to the Note.
If and so long as any Series of Notes are listed on the
Luxembourg Stock Exchange and such exchange shall so require, the Indenture
Trustee shall appoint a co-transfer agent and co-registrar in Luxembourg or
another European city. Any reference in this Indenture to the Transfer Agent and
Registrar shall include any co-transfer agent and co-registrar unless the
context otherwise requires. The Indenture Trustee will enter into any
appropriate agency agreement with any co-transfer agent and co-registrar not a
party to this Indenture, which will implement the provisions of this Indenture
that relate to such agent. The Indenture Trustee initially appoints Kredietbank
S.A. Luxembourgeoise, at its office located at 00 Xxxxxxxxx Xxxxx, X-0000
Xxxxxxxxxx, as Transfer Agent and Registrar for each Series of Notes listed on
the Luxembourg Stock Exchange.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes.
If (a) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its reasonable
satisfaction of the destruction, loss or theft of any Note, and (b) in case of
destruction, loss, or theft there is delivered to the Indenture Trustee such
security or indemnity as may be required by it to hold the Issuer, the
Noteholders and the Indenture Trustee harmless, then, in the absence of notice
to the Issuer, the Transfer Agent and Registrar or the Indenture Trustee that
such Note has been acquired by a Protected Purchaser, the Issuer shall execute,
and the Indenture Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note
of like tenor (including the same date of issuance) and principal amount,
bearing a number not contemporaneously outstanding; provided, however, that if
any such mutilated, destroyed, lost or stolen Note shall have become or within
seven (7) days shall be due and payable, or shall have been selected or called
for redemption, instead of issuing a replacement Note, the Issuer may pay such
Note without surrender thereof, except that any mutilated Note shall be
surrendered. If,
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after the delivery of such replacement Note or payment of a destroyed, lost or
stolen Note pursuant to the proviso to the preceding sentence, a Protected
Purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such payment) from the
Person to whom it was delivered or any Person taking such replacement Note from
such Person to whom such replacement Note was delivered or any assignee of such
Person, except a Protected Purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section
2.06, the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee or the Transfer Agent and Registrar) connected
therewith.
Every replacement Note issued pursuant to this Section 2.06 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
complete and indefeasible evidence of debt of the Trust, as if originally
issued, whether or not the mutilated, destroyed, lost or stolen Note shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.07. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any
Note, the Issuer, the Indenture Trustee and any agent of the Transferor, the
Issuer or the Indenture Trustee shall treat the Person in whose name any Note is
registered as the owner of such Note for the purpose of receiving distributions
pursuant to the terms of the applicable Indenture Supplement and for all other
purposes whatsoever, whether or not such Note is overdue, and neither the
Issuer, the Transferor, the Indenture Trustee nor any agent of the Issuer, the
Transferor or the Indenture Trustee shall be affected by any notice to the
contrary.
Section 2.08. Appointment of Paying Agent.
(a) The Issuer reserves the right at any time to vary or
terminate the appointment of a Paying Agent for the Notes, and to appoint
additional or other Paying Agents, provided that it will at all times maintain
the Indenture Trustee as Paying Agent.
If and so long as any Notes are listed on the Luxembourg Stock
Exchange and such exchange shall so require, the Indenture Trustee will appoint
a co-paying agent in Luxembourg or another European city. The Indenture Trustee
will enter into any appropriate agency agreement with any co-paying agent not a
party to this Indenture, which will implement the provisions of this Indenture
that relate to such agent. The Indenture Trustee initially appoints
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Kredietbank S.A. Luxembourgeoise, at its office located at 00 Xxxxxxxxx Xxxxx,
X-0000 Xxxxxxxxxx, as Paying Agent for each Series of Notes listed on the
Luxembourg Stock Exchange.
Notice of all changes in the identity or specified office of a
Paying Agent will be delivered promptly to the Noteholders by the Indenture
Trustee.
(b) The Indenture Trustee shall cause the Paying Agent (other
than itself) to execute and deliver to the Indenture Trustee an instrument in
which such Paying Agent shall agree with the Indenture Trustee that such Paying
Agent will hold all sums, if any, held by it for payment to the Noteholders in
trust for the benefit of the Noteholders entitled thereto until such sums shall
be paid to such Noteholders and shall agree, and if the Indenture Trustee is the
Paying Agent it hereby agrees, that it shall comply with all requirements of the
Code regarding the withholding by the Indenture Trustee of payments in respect
of federal income taxes due from the Beneficial Owners.
Section 2.09. Access to List of Noteholders' Names and
Addresses.
(a) The Issuer will furnish or cause to be furnished to the
Indenture Trustee, the Servicer, any Noteholder or the Paying Agent, within five
(5) Business Days after receipt by the Issuer of a written request therefor from
the Indenture Trustee, the Servicer, such Noteholder or the Paying Agent,
respectively, a list of the names and addresses of the Noteholders. Unless
otherwise provided in the related Indenture Supplement, holders of 10% of the
Outstanding Amount of the Notes of any Series (the "APPLICANTS") may apply in
writing to the Indenture Trustee, and if such application states that the
Applicants desire to communicate with other Noteholders of any Series with
respect to their rights under this Indenture or under the Notes and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Indenture Trustee, after having been adequately indemnified
by such Applicants for its costs and expenses, shall afford or shall cause the
Transfer Agent and Registrar to afford such Applicants access during normal
business hours to the most recent list of Noteholders held by the Indenture
Trustee and shall give the Servicer notice that such request has been made,
within five (5) Business Days after the receipt of such application. Such list
shall be as of a date no more than forty-five (45) days prior to the date of
receipt of such Applicants' request.
(b) Every Noteholder, by receiving and holding a Note, agrees
that none of the Issuer, the Indenture Trustee, the Transfer Agent and Registrar
and the Servicer or any of their respective agents and employees shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Noteholders hereunder, regardless of the sources from which
such information was derived.
Section 2.10. Cancellation.
All Notes surrendered for payment, registration of transfer,
exchange or redemption shall, if surrendered to any Person other than the
Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly
canceled by it. The Issuer may at any time deliver to the Indenture Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Issuer may have acquired in any lawful manner whatsoever, and all Notes
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so delivered shall be promptly canceled by the Indenture Trustee. No Notes shall
be authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section 2.10, except as expressly permitted by this Indenture. All canceled
Notes held by the Indenture Trustee shall be destroyed unless the Issuer shall
direct by a timely order that they be returned to it.
Section 2.11. Release of Collateral.
Subject to Section 12.01, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Section 314(c) and 314(d) or an Opinion of
Counsel in lieu of such Independent Certificates to the effect that the TIA does
not require any such Independent Certificates.
Section 2.12. New Issuances.
(a) Pursuant to one or more Indenture Supplements, the
Transferor may from time to time direct the Owner Trustee in writing, on behalf
of the Issuer, to issue one or more new Series of Notes (a "NEW ISSUANCE"). The
Notes of all outstanding Series shall be equally and ratably entitled as
provided herein to the benefits of this Indenture without preference, priority
or distinction, all in accordance with the terms and provisions of this
Indenture and the applicable Indenture Supplement except, with respect to any
Series or Class, as provided in the related Indenture Supplement. Interest on
the Notes of all outstanding Series shall be paid on each Distribution Date as
specified in the Indenture Supplement relating to such outstanding Series.
Principal of the Notes of each outstanding Series shall be paid as specified in
the Indenture Supplement relating to such outstanding Series.
(b) On or before the Series Issuance Date relating to any new
Series of Notes, the parties hereto will execute and deliver an Indenture
Supplement which will specify the Principal Terms of such Series. The terms of
such Indenture Supplement may modify or amend the terms of this Indenture solely
as applied to such new Series. The obligation of the Owner Trustee to execute,
on behalf of the Issuer, the Notes of any Series and of the Indenture Trustee to
authenticate such Notes and to execute and deliver the related Indenture
Supplement (other than any Series issued pursuant to an Indenture Supplement
dated as of April 7, 2000) is subject to the satisfaction of the following
conditions:
(i) on or before the fifth day immediately preceding the
Series Issuance Date the Transferor shall have given the Owner Trustee,
the Indenture Trustee, the Servicer and each Rating Agency notice
(unless such notice requirement is otherwise waived) of such issuance
and the Series Issuance Date;
(ii) the Transferor shall have delivered to the Owner Trustee
and the Indenture Trustee any related Indenture Supplement, in form
satisfactory to the Owner Trustee (as such and in its individual
capacity) and the Indenture Trustee, executed by each party hereto
(other than the Indenture Trustee);
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(iii) the Transferor shall have delivered to the Owner Trustee
and the Indenture Trustee any related Enhancement Agreement executed by
the provider of the credit enhancement and the other parties thereto;
(iv) the Rating Agency Condition shall have been satisfied
with respect to such issuance;
(v) such issuance will not result in any Adverse Effect and
the Transferor shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate, dated the Series Issuance
Date to the effect that (i) the Transferor reasonably believes that
such issuance will not, based on the facts known to such officer at the
time of such certification, have an Adverse Effect, and (ii) all
conditions precedent to such execution, authentication, and delivery
have been satisfied;
(vi) there shall have been delivered to the Owner Trustee and
the Indenture Trustee (with a copy to each Rating Agency) a Tax
Opinion, dated the Series Issuance Date with respect to such issuance;
and
(vii) the aggregate amount of Principal Receivables plus the
principal amount of any Participation Interest theretofore conveyed to
the Trust as of the Series Issuance Date shall be greater than the
Required Minimum Principal Balance and the Transferor Interest shall be
greater than the Required Transferor Interest, each as of the Series
Issuance Date and after giving effect to such issuance.
Any Note held by the Transferor at any time after the date of its initial
issuance may be transferred or exchanged only upon the delivery to the Owner
Trustee and the Indenture Trustee of a Tax Opinion dated as of the date of such
transfer or exchange, as the case may be, with respect to such transfer or
exchange.
(c) Upon satisfaction of the above conditions, pursuant to
Section 2.03, the Owner Trustee, on behalf of the Issuer, shall execute and the
Indenture Trustee shall authenticate and deliver the Notes of such Series as
provided in this Indenture and the applicable Indenture Supplement.
Notwithstanding the provisions of this Section 2.12, prior to the execution of
any Indenture Supplement (other than any Indenture Supplement dated as of April
7, 2000), the Indenture Trustee and Owner Trustee shall be entitled to receive
and rely upon an Opinion of Counsel stating that the execution of such Indenture
Supplement is authorized or permitted by this Indenture and any Indenture
Supplement related to any outstanding Series. The Indenture Trustee and Owner
Trustee may, but shall not be obligated to, enter into any such Indenture
Supplement which adversely affects the Indenture Trustee's or Owner Trustee's
(as such or in its individual capacity) own rights, duties, benefits,
protections, privileges or immunities under this Indenture.
(d) The Issuer may direct the Indenture Trustee to deposit the
net proceeds from any New Issuance in the Special Funding Account. The Issuer
may also specify that on any Transfer Date the proceeds from the sale of any new
Series may be withdrawn from the Special Funding Account and treated as Shared
Principal Collections.
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Section 2.13. Book-Entry Notes.
Unless otherwise provided in any related Indenture Supplement,
the Notes, upon original issuance, shall be issued in the form of typewritten
Notes representing the Book-Entry Notes to be delivered to the depository
specified in such Indenture Supplement which shall be the Clearing Agency or
Foreign Clearing Agency, by or on behalf of such Series.
The Notes of each Series shall, unless otherwise provided in
the related Indenture Supplement, initially be registered in the Note Register
in the name of the nominee of the Clearing Agency or Foreign Clearing Agency for
such Book-Entry Notes and shall be delivered to the Indenture Trustee or,
pursuant to such Clearing Agency's or Foreign Clearing Agency's instructions
held by the Indenture Trustee's agent as custodian for the Clearing Agency or
Foreign Clearing Agency.
Unless and until Definitive Notes are issued under the limited
circumstances described in Section 2.15, no Beneficial Owner shall be entitled
to receive a Definitive Note representing such Beneficial Owner's interest in
such Note. Unless and until Definitive Notes have been issued to the Beneficial
Owners pursuant to Section 2.15:
(a) the provisions of this Section 2.13 shall be in full force
and effect with respect to each such Series;
(b) the Indenture Trustee shall be entitled to deal with the
Clearing Agency or Foreign Clearing Agency and the Clearing Agency
Participants for all purposes of this Indenture (including the payment
of principal of and interest on the Notes of each such Series) as the
authorized representatives of the Beneficial Owners;
(c) to the extent that the provisions of this Section 2.13
conflict with any other provisions of this Indenture, the provisions of
this Section 2.13 shall control with respect to each such Series;
(d) the rights of Beneficial Owners of each such Series shall
be exercised only through the Clearing Agency or Foreign Clearing
Agency and the applicable Clearing Agency Participants and shall be
limited to those established by law and agreements between such
Beneficial Owners and the Clearing Agency or Foreign Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the depository
agreement applicable to a Series, unless and until Definitive Notes of
such Series are issued pursuant to Section 2.15, the initial Clearing
Agency shall make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of the Holders of Notes
evidencing a specified percentage of the Outstanding Amount of the
Notes, the Clearing Agency or Foreign Clearing Agency shall be deemed
to represent such percentage only to the extent that they have received
instructions to such effect from the Beneficial Owners and/or Clearing
Agency Participants owning or representing, respectively, such required
percentage of the
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beneficial interest in the Notes and has delivered such instructions to
the Indenture Trustee.
Section 2.14. Notices to Clearing Agency or Foreign Clearing
Agency.
Whenever a notice or other communication to the Noteholders is
required under this Indenture, unless and until Definitive Notes shall have been
issued to Beneficial Owners pursuant to Section 2.15, the Indenture Trustee
shall give all such notices and communications specified herein to be given to
Noteholders to the Clearing Agency or Foreign Clearing Agency, as applicable,
and shall have no obligation to the Beneficial Owners.
Section 2.15. Definitive Notes.
If (i) (a) the Issuer advises the Indenture Trustee in writing
that the Clearing Agency or Foreign Clearing Agency is no longer willing or able
to discharge properly its responsibilities as Clearing Agency or Foreign
Clearing Agency with respect to the Book-Entry Notes of a given Class and (b)
the Indenture Trustee or Issuer is unable to locate and reach an agreement on
satisfactory terms with a qualified successor, (ii) the Issuer, at its option,
advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or Foreign Clearing Agency with
respect to such Class or (iii) after the occurrence of a Servicer Default,
Beneficial Owners aggregating a majority of the Outstanding Amount of the Notes
(or such other percentage as specified in the related Indenture Supplement) of
such Class advise the Indenture Trustee and the applicable Clearing Agency or
Foreign Clearing Agency through the applicable Clearing Agency Participants in
writing that the continuation of a book-entry system is no longer in the best
interests of the Beneficial Owners of such Class, the Clearing Agency or Foreign
Clearing Agency, as the case may be, shall notify all Beneficial Owners of such
Class of the occurrence of such event and of the availability of Definitive
Notes to Beneficial Owners of such Class requesting the same. Upon surrender to
the Indenture Trustee of the Notes of such Class, accompanied by registration
instructions from the applicable Clearing Agency, the Issuer shall execute and
the Indenture Trustee shall authenticate Definitive Notes of such Class and
shall recognize the registered holders of such Definitive Notes as Noteholders
under this Indenture. Neither the Issuer nor the Indenture Trustee shall be
liable for any delay in delivery of such instructions, and the Issuer and the
Indenture Trustee may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Notes of such Series, all
references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be
imposed upon and performed by the Indenture Trustee, to the extent applicable
with respect to such Definitive Notes, and the Indenture Trustee shall recognize
the registered holders of the Definitive Notes of such Series as Noteholders of
such Series hereunder. Definitive Notes will be transferable and exchangeable at
the offices of the Transfer Agent and Registrar.
Section 2.16. Global Note.
If specified in the related Indenture Supplement for any
Series, Notes may be initially issued in the form of a single temporary Global
Note (the "GLOBAL NOTE") in bearer form, without interest coupons, in the
denomination of the Initial Invested Amount and substantially in the form
attached to the related Indenture Supplement. Unless otherwise
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specified in the related Indenture Supplement, the provisions of this Section
2.16 shall apply to such Global Note. The Global Note will be authenticated by
the Indenture Trustee upon the same conditions, in substantially the same manner
and with the same effect as the Definitive Notes. The Global Note may be
exchanged in the manner described in the related Indenture Supplement for
Registered Notes or Bearer Notes in definitive form. Except as otherwise
specifically provided in the Indenture Supplement, any Notes that are issued in
bearer form pursuant to this Indenture shall be issued in accordance with the
requirements of Code section 163(f)(2).
Section 2.17. Meetings of Noteholders.
To the extent provided by the Indenture Supplement for any
Series issued in whole or in part in Bearer Notes, the Servicer or the Indenture
Trustee may at any time call a meeting of the Noteholders of such Series, to be
held at such time and at such place as the Servicer or the Indenture Trustee, as
the case may be, shall determine, for the purpose of approving a modification of
or amendment to, or obtaining a waiver of, any covenant or condition set forth
in this Indenture with respect to such Series or in the Notes of such Series,
subject to Article X.
Section 2.18. Uncertificated Classes.
Notwithstanding anything to the contrary contained in this
Article II or in Article XI, unless otherwise specified in any Indenture
Supplement, any provisions contained in this Article II and in Article XI
relating to the registration, form, execution, authentication, delivery,
presentation, cancellation and surrender of Notes shall not be applicable to any
uncertificated Notes, provided, however, that, except as otherwise specifically
provided in the Indenture Supplement, any such uncertificated Notes shall be
issued in "registered form" within the meaning of Code section 163(f)(1).
ARTICLE III
COVENANTS OF ISSUER
Section 3.01. Payment of Principal and Interest.
(a) The Issuer will duly and punctually pay principal and
interest in accordance with the terms of the Notes as specified in the relevant
Indenture Supplement.
(b) The Noteholders of a Series as of the Record Date in
respect of a Distribution Date shall be entitled to the interest accrued and
payable and principal payable on such Distribution Date as specified in the
related Indenture Supplement. All payment obligations under a Note are
discharged to the extent such payments are made to the Noteholder of record.
Section 3.02. Maintenance of Office or Agency.
The Issuer will maintain an office or agency within the
Borough of Manhattan, City of New York and such other locations as may be set
forth in an Indenture Supplement where Notes may be presented or surrendered for
payment, where Notes may be surrendered for
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registration of transfer or exchange and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The Issuer
hereby initially appoints the Indenture Trustee at its Corporate Trust Office to
serve as its agent for the foregoing purposes. The Issuer will give prompt
written notice to the Indenture Trustee and the Noteholders of the location, and
of any change in the location, of any such office or agency. If at any time the
Issuer shall fail to maintain any such office or agency or shall fail to furnish
the Indenture Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Indenture Trustee at its Corporate Trust Office as
its agent to receive all such presentations, surrenders, notices and demands.
Section 3.03. Money for Note Payments to Be Held in Trust.
As specified in Section 8.03 herein and in the related
Indenture Supplement, all payments of amounts due and payable with respect to
the Notes which are to be made from amounts withdrawn from the Collection
Account and the Special Funding Account shall be made on behalf of the Issuer by
the Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from
the Collection Account or the Special Funding Account shall be paid over to or
at the direction of the Issuer except as provided in this Section 3.03 and in
the related Indenture Supplement.
Whenever the Issuer shall have a Paying Agent in addition to
the Indenture Trustee, it will, on or before the Business Day next preceding
each Distribution Date, direct the Indenture Trustee to deposit with such Paying
Agent on or before such Distribution Date an aggregate sum sufficient to pay the
amounts then becoming due, such sum to be (i) held in trust for the benefit of
Persons entitled thereto and (ii) invested, pursuant to an Issuer Order, by the
Paying Agent in an Eligible Investment in accordance with the terms of the
related Indenture Supplement. For all investments made by a Paying Agent under
this Section 3.03, such Paying Agent shall be entitled to all of the rights and
obligations of the Indenture Trustee under the related Indenture Supplement,
such rights and obligations being incorporated in this paragraph by this
reference.
The Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section 3.03, that such Paying Agent, in acting as Paying
Agent, is an express agent of the Issuer and, further, that such Paying Agent
will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect
to the Notes;
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(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it by in trust for the payment
of Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which such sums were held by such Paying Agent;
and upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Section 3.04. Existence.
The Issuer will keep in full effect its existence, rights and
franchises as a business trust under the laws of the State of Delaware (unless
it becomes, or any successor Issuer hereunder is or becomes, organized under the
laws of any other state or of the United States of America, in which case the
Issuer will keep in full effect its existence, rights and franchises under the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes, the Collateral and each other related instrument or agreement.
Section 3.05. Protection of Trust.
The Issuer will from time to time prepare, or cause to be
prepared, execute and deliver all such supplements and amendments hereto and all
such financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action necessary or
advisable to:
(a) Grant more effectively all or any portion of the
Collateral as security for the Notes;
(b) maintain or preserve the lien (and the priority thereof)
of this Indenture or to carry out more effectively the purposes hereof;
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(c) perfect, publish notice of, or protect the validity of any
Grant made or to be made by this Indenture;
(d) enforce any of the Collateral; or
(e) preserve and defend title to the Collateral securing the
Notes and the rights therein of the Indenture Trustee and the Noteholders
secured thereby against the claims of all Persons and parties.
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation statement
or other instrument required pursuant to this Section 3.05.
The Issuer shall pay or cause to be paid any taxes levied on
all or any part of Receivables securing the Notes.
Section 3.06. Opinions as to Collateral.
(a) On the Series Issuance Date relating to any new Series of
Notes, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
(with a copy to each Rating Agency) either stating that, in the opinion of such
counsel, such action has been taken to perfect the lien and security interest of
this Indenture, including without limitation 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 so necessary and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to maintain the perfection of such lien and
security interest.
(b) On or before May 30 in each calendar year, beginning in
2001, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
to perfect the lien and security interest of this Indenture, including without
limitation 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 so necessary and reciting the
details of such action or stating that in the opinion of such counsel no such
action is necessary to maintain the perfection of such lien and security
interest. Such Opinion of Counsel shall 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 perfection of the lien and security
interest of this Indenture until May 30 in the following calendar year.
Section 3.07. Performance of Obligations; Servicing of
Receivables.
(a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral
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or that would result in the amendment, hypothecation, subordination, termination
or discharge of, or impair the validity or effectiveness of, any such instrument
or agreement, except as expressly provided in this Indenture, the Transfer and
Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Administrator to assist the Issuer in performing
its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Transaction
Documents and in the instruments and agreements relating to the Collateral,
including but not limited to filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of this
Indenture and the Transfer and Servicing Agreement in accordance with and within
the time periods provided for herein and therein. Except as otherwise expressly
provided herein or therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Transaction Document or any provision thereof
without the consent of the Holders of a majority of the Outstanding Amount of
the Notes of each adversely affected Series.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default under the Transfer and Servicing Agreement, the Issuer shall
cause the Indenture Trustee to promptly notify the Rating Agencies thereof, and
shall cause the Indenture Trustee to specify in such notice the action, if any,
being taken with respect to such default. If a Servicer Default shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Transfer and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
(e) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 7.01 of the Transfer and Servicing Agreement, the
Servicer shall continue to perform all servicing functions under the Transfer
and Servicing Agreement until the date specified in the Termination Notice or
otherwise specified by the Indenture Trustee or until a date mutually agreed
upon by the Servicer and the Indenture Trustee. As promptly as possible after
the giving of a Termination Notice to the Servicer, the Indenture Trustee shall
appoint a Successor Servicer, and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment at the time when the Servicer ceases to act as
Servicer, the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer. The Indenture Trustee may delegate any of its
servicing obligations to an Affiliate or agent in accordance with subsection
3.01(b) and Section 5.07 of the Transfer and Servicing Agreement.
Notwithstanding the foregoing, the Indenture Trustee shall, if it is legally
unable so to act, petition at the expense of the Servicer a court of competent
jurisdiction to appoint any established institution qualifying as an Eligible
Servicer as the Successor Servicer. The Indenture Trustee shall give prompt
notice to each Rating Agency and each Series Enhancer upon the appointment of a
Successor Servicer. Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under the
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Transfer and Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions thereof, and all references in this Indenture to the
Servicer shall be deemed to refer to the Successor Servicer. In connection with
any Termination Notice, the Indenture Trustee will review any bids which it
obtains from Eligible Servicers and shall be permitted to appoint any Eligible
Servicer submitting such a bid as a Successor Servicer for servicing
compensation, subject to the limitations set forth in Section 7.02 of the
Transfer and Servicing Agreement.
(f) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees (i) that it will not,
without the prior written consent of the Indenture Trustee and a majority in
Outstanding Amount of the Notes of each Series, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any Collateral
(except to the extent otherwise provided in the Transfer and Servicing
Agreement) or the Transaction Documents (except to the extent otherwise provided
in the Transaction Documents), or waive timely performance or observance by the
Servicer or the Transferor under the Transfer and Servicing Agreement; and (ii)
that any such amendment shall not (A) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on the
Receivables or distributions that are required to be made for the benefit of the
Noteholders or (B) reduce the aforesaid percentage of the Notes that is required
to consent to any such amendment, without the consent of the Holders of all the
Outstanding Notes. If any such amendment, modification, supplement or waiver
shall be so consented to by the Indenture Trustee and such Noteholders, the
Issuer agrees, promptly following a request by the Indenture Trustee to do so,
to execute and deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as the Indenture Trustee may deem
necessary or appropriate in the circumstances.
Section 3.08. Negative Covenants.
So long as any Notes are Outstanding, the Issuer will not:
(a) sell, transfer, exchange, or otherwise dispose of any part
of the Collateral except as expressly permitted by this Indenture, any Indenture
Supplement, the Trust Agreement or the Transfer and Servicing Agreement;
(b) claim any credit on, or make any deduction from, the
principal and interest payable in respect of the Notes (other than amounts
properly withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former Noteholder by reason of the
payment of any taxes levied or assessed upon any part of the Collateral;
(c) (A) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any Lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Collateral
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or any part thereof or any interest therein or the proceeds thereof or (C)
permit the lien of this Indenture not to constitute a valid first priority
security interest in the Collateral; or
(d) voluntarily dissolve or liquidate in whole or in part.
Section 3.09. Statements as to Compliance.
The Issuer will deliver to the Indenture Trustee, within 120
days after the end of each fiscal year of the Issuer (commencing within 120 days
after the end of the fiscal year 2001), an Officer's Certificate stating, as to
the Authorized Officer signing such Officer's Certificate, that
(i) a review of the activities of the Issuer during the
12-month period ending at the end of such fiscal year (or in the case
of the fiscal year ending December 31, 2001, the period from the
Closing Date to December 31, 2001) and of performance under this
Indenture has been made under such Authorized Officer's supervisions,
and
(ii) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
Section 3.10. Issuer May Consolidate, Etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(1) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger (i) shall be a
Person organized and existing under the laws of the United
States of America or any state or the District of Columbia,
(ii) shall not be subject to regulation as an "investment
company" under the Investment Company Act and (iii) shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in a form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance of every covenant of this Indenture on the part of
the Issuer to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default or Pay Out Event shall have
occurred and be continuing;
(3) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel
each stating that (i) such consolidation or merger and such
supplemental indenture comply with this Section 3.10, (ii) all
conditions precedent in this Section 3.10 relating to such
transaction have been complied with (including any filing
required by the Exchange Act), and (iii) such supplemental
indenture is duly authorized, executed and delivered and is
valid, binding and enforceable against such person;
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(4) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(5) the Issuer shall have received a Tax Opinion and
an Opinion of Counsel dated the date of such consolidation or
merger (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse tax consequence to any
Noteholder; and
(6) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken.
(b) The Issuer shall not convey or transfer any of its
properties or assets, including those included in the Collateral, substantially
as an entirety to any Person, unless:
(1) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the
conveyance or transfer of which is hereby restricted shall (A)
be a United States citizen or a Person organized and existing
under the laws of the United States of America or any state,
or the District of Columbia, (B) expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as provided
herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of
Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend
and hold harmless the Issuer against and from any loss,
liability or expense arising under or related to this
Indenture and the Notes, (E) expressly agree by means of such
supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings
with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes and
(F) not be an "investment company" as defined in the
Investment Company Act;
(2) immediately after giving effect to such
transaction, no Event of Default or Pay Out Event shall have
occurred and be continuing;
(3) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(4) the Issuer shall have received a Tax Opinion and
an Opinion of Counsel (and shall have delivered copies thereof
to the Indenture Trustee) to the effect that such transaction
will not have any material adverse tax consequence to any
Noteholder;
(5) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken; and
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(6) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such
supplemental indenture comply with this Section 3.10 and that
all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing
required by the Exchange Act).
Section 3.11. Successor Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Issuer substantially as an entirety
in accordance with Section 3.10 hereof, the Person formed by or surviving such
consolidation or merger (if other than the Issuer) or the Person to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein. In the event of
any such conveyance or transfer, the Person named as the Issuer in the first
paragraph of this Indenture or any successor which shall theretofore have become
such in the manner prescribed in this Section 3.11 shall be released from its
obligations under this Indenture as issued immediately upon the effectiveness of
such conveyance or transfer, provided that the Issuer shall not be released from
any obligations or liabilities to the Indenture Trustee or the Noteholders
arising prior to such effectiveness.
Section 3.12. No Other Business.
The Issuer shall not engage in any business other than the
activities set forth in Section 2.03 of the Trust Agreement and all activities
incidental thereto or other than as required or authorized by the terms of the
Transaction Documents.
Section 3.13. No Borrowing.
The Issuer shall not issue, incur, assume, guarantee or
otherwise become liable, directly or indirectly, for any indebtedness except as
expressly provided for pursuant to the terms of the Transaction Documents and
the Notes.
Section 3.14. Servicer's Obligations. The Issuer shall cause
the Servicer to comply with all of its obligations under the Transaction
Documents.
Section 3.15. Guarantees, Loans, Advances and Other
Liabilities.
Except as contemplated by this Indenture or the Transfer and
Servicing Agreement, the Issuer shall not make any loan or advance or credit to,
or guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
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Section 3.16. Capital Expenditures.
The Issuer shall not make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or personalty).
Section 3.17. Removal of Administrator.
So long as any Notes are outstanding, the Issuer shall not
remove the Administrator without cause unless the Rating Agency Condition shall
have been satisfied in connection with such removal.
Section 3.18. Restricted Payments.
The Issuer shall not, directly or indirectly, (i) pay any
dividend or make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) distributions as contemplated by,
and to the extent funds are available for such purpose under, the Transfer and
Servicing Agreement or the Trust Agreement and (y) payments to the Indenture
Trustee pursuant to Section 6.07 hereof. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection Account except
in accordance with the Transaction Documents.
Section 3.19. Notice of Events of Default.
The Issuer agrees to give the Indenture Trustee and the Rating
Agencies prompt written notice of each Event of Default hereunder and,
immediately after obtaining knowledge of any of the following occurrences,
written notice of each default on the part of the Servicer or the Transferor of
its obligations under the Transfer and Servicing Agreement and each default on
the part of a Seller of its obligations under the Receivables Purchase Agreement
or the Transferor Purchase Agreement, as applicable.
Section 3.20. Further Instruments and Acts.
Upon request of the Indenture Trustee, the Issuer will execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of this Indenture.
This Indenture shall cease to be of further effect with
respect to the Notes except as to (a) rights of registration of transfer and
exchange, (b) substitution of mutilated, destroyed,
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lost or stolen Notes, (c) the rights of Noteholders to receive payments of
principal thereof and interest thereon, (d) Sections 3.03, 3.07, 3.08, 3.11,
12.16 and 3.12, (e) the rights and immunities of the Indenture Trustee
hereunder, including the rights of the Indenture Trustee under Section 6.07, and
the obligations of the Indenture Trustee under Section 4.02, and (f) the rights
of Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee and payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes when:
(i) either
(A) all Notes theretofore authenticated and delivered (other
than (1) Notes which have been destroyed, lost or stolen and which have
been replaced, or paid as provided in Section 2.06, and (2) Notes for
whose full payment (principal and interest) money has theretofore been
deposited in trust or segregated and held in trust by the Indenture
Trustee) have been delivered to the Indenture Trustee for cancellation;
or
(B) all Notes not theretofore delivered to the Indenture
Trustee for cancellation:
(1) have become due and payable;
(2) will become due and payable at the Final Maturity Date for
such Class or Series of Notes; or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer;
and the Issuer, in the case of (1), (2) or (3) above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire indebtedness on such Notes
not theretofore delivered to the Indenture Trustee for cancellation
when due at the Final Maturity Date for such Class or Series of Notes
or the Redemption Date (if Notes shall have been called for redemption
pursuant to the related Indenture Supplement), as the case may be;
(ii) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements
of Section 12.01(a) and each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
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Section 4.02. Application of Trust Money.
All monies deposited with the Indenture Trustee pursuant to
Section 4.01 hereof shall be held in trust and applied by it, in accordance with
the provisions of the Notes, this Indenture and the applicable Indenture
Supplement, to make payments, either directly or through any Paying Agent, as
the Indenture Trustee may determine, to the Noteholders and for the payment in
respect of which such monies have been deposited with the Indenture Trustee, of
all sums due and to become due thereon for principal and interest; but such
monies need not be segregated from other funds except to the extent required
herein or in the Transfer and Servicing Agreement or required by law.
ARTICLE V
PAY OUT EVENTS, DEFAULTS AND REMEDIES
Section 5.01. Pay Out Events.
If any one of the following events (each, a "TRUST PAY OUT
EVENT") shall occur:
(a) the occurrence of an Insolvency Event relating to the
Transferor, ACCS or, unless the Rating Agency Condition is satisfied with
respect to the deletion of ANB from this subsection 5.01(a), the occurrence of
an Insolvency Event relating to ANB;
(b) a Transfer Restriction Event shall occur; or
(c) the Trust shall become subject to regulation by the
Securities and Exchange Commission as an "investment company" within the meaning
of the Investment Company Act;
then a Pay Out Event with respect to all Series of Notes shall
occur without any notice or other action on the part of the Indenture Trustee or
the Noteholders immediately upon the occurrence of such event.
Upon the occurrence of a Pay Out Event, an Amortization Period
shall commence and payment on the Notes of each Series will be made in
accordance with the terms of the related Indenture Supplement.
Section 5.02. Events of Default.
"EVENT OF DEFAULT," wherever used herein, means with respect
to any Series any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(a) default in the payment of the principal of any Note of
that Series, if and to the extent not previously paid, when the same becomes due
and payable; or
(b) default in the payment of any interest on any Note of that
Series when the same becomes due and payable, and such default shall continue
for a period of thirty-five (35) days; or
(c) default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture made in respect of the Notes
of such Series (other than a covenant, or agreement, a default in the observance
or performance of which is elsewhere in this Section 5.02 specifically dealt
with) (all of such covenants and agreements in this Indenture which are not
expressly stated to be for the benefit of a particular Series being deemed to be
in respect of the Notes of all Series for this purpose), and such default shall
continue or not be cured for a period of sixty (60) days after there shall have
been given, by registered or certified mail, return receipt requested to the
Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by
the Holders of at least 50% of the Outstanding Amount of the Notes of such
Series, a written notice specifying such default and requiring it to be remedied
and stating that such notice is a "NOTICE OF DEFAULT" hereunder and, as a result
of such default, the interests of the Holders of the Notes are materially and
adversely affected and continue to be materially and adversely affected during
the 60-day period; or
(d) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer in an involuntary
case under any applicable federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver, conservator,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
the Issuer or ordering the winding-up or liquidation of the Issuer's affairs,
and such decree or order shall remain unstayed and in effect for a period of
sixty (60) consecutive days; or
(e) the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an order
for relief in an involuntary case under any such law, or the consent by the
Issuer to the appointment of or the taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator or similar official of
the Issuer, or the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to pay, or the
admission in writing by the Issuer of its inability to pay, its debts as such
debts become due, or the taking of action by the Issuer in furtherance of any of
the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five
(5) days after the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default, its status and what action the Issuer
is taking or proposes to take with respect thereto.
Section 5.03. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default described in paragraph (a), (b) or (c)
of Section 5.02 should occur and be continuing with respect to a Series, then
and in every such case the Indenture
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Trustee or the Holders of Notes representing not less than a majority of the
Outstanding Amount of such Series may declare all the Notes of such Series to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if declared by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable.
If an Event of Default described in paragraph (d) or (e) of
Section 5.02 should occur and be continuing, then the unpaid principal of the
Notes, together with accrued and unpaid interest thereon through the date of
acceleration, shall automatically become, and shall be deemed to be declared,
due and payable.
At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter in this Article V
provided, the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Notes of such Series, by written notice to the Issuer
and the Indenture Trustee, may rescind and annul such declaration and its
consequences.
No such rescission shall affect any subsequent default or
impair any right consequent thereto.
Section 5.04. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of thirty-five (35) days following the date
on which such interest became due and payable, or (ii) default is made in the
payment of principal of any Note, if and to the extent not previously paid, when
the same becomes due and payable, the Issuer will, upon demand of the Indenture
Trustee, pay to it, for the benefit of the Holders of the Notes of the affected
Series, the whole amount then due and payable on such Notes for principal and
interest, with interest upon the overdue principal, and, to the extent payment
at such rate of interest shall be legally enforceable, interest upon overdue
installments of interest, at the applicable Note Interest Rate borne by the
Notes of such Series, and in addition thereto will pay such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a 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 other obligor upon such
Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged
or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.05, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders of the affected Series, by such appropriate
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Proceedings as the Indenture Trustee shall deem most effective to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy or legal or equitable right vested
in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes of the affected Series, or any Person having or
claiming an ownership interest in the Collateral, Proceedings under Title 11 of
the United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or in case a
receiver, conservator, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator, custodian or other similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes of such Series, or to the
creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section 5.04, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest owing and unpaid in respect
of the Notes of such Series and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the
Noteholders of such Series allowed in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes of such
Series in any election of a trustee, a standby trustee or
Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims of
the Noteholders of such Series and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee or the Holders of Notes of
such Series allowed in any judicial Proceedings relative to
the Issuer, its creditors and its property;
and any trustee, receiver, conservator, liquidator, custodian, assignee,
sequestrator or other similar official in any such Proceeding is hereby
authorized by each of such Noteholders to make payments to the Indenture
Trustee, and, in the event that the Indenture Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the Indenture Trustee
such
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amounts as shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture Trustee
except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the benefit of the Holders of the Notes of the affected Series as
provided herein.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Notes of the affected
Series, and it shall not be necessary to make any such Noteholder a party to any
such Proceedings.
Section 5.05. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing with respect to any Series, and the Notes of such Series have been
accelerated pursuant to Section 5.03, the Indenture Trustee may do one or more
of the following (subject to Sections 5.06 and 12.16):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts
then payable on the Notes of the affected Series or under this
Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the
Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) subject to the last paragraph of this subsection
5.05(a), take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and
the Holders of the Notes of the affected Series;
(iii) at the direction of the Holders of a majority
of the Outstanding Amount of such Notes, cause the Issuer to
sell Principal Receivables in an amount equal to the product
of (x) the Invested Amount with respect to the accelerated
Series and (y) a fraction, the numerator of which is one and
the denominator of which is equal to the excess of one over
the Discount Percentage, and the related
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Finance Charge Receivables (or interests therein) in
accordance with Section 5.16 hereof;
provided, however, that the Indenture Trustee may not exercise the remedy
described in subparagraph (iii) above unless (A) the Holders of 100% of the
Outstanding Amount of the Notes of the affected Series consent thereto, (B) the
Indenture Trustee determines that any proceeds of such exercise distributable to
the Noteholders of the affected Series are sufficient to discharge in full all
amounts then due and unpaid upon the Notes for principal and interest or (C) the
Indenture Trustee determines that the Collateral may not continue to provide
sufficient funds for the payment of principal of and interest on the Notes as
they would have become due if the Notes had not been declared due and payable,
and the Indenture Trustee obtains the consent of Holders of at least 66-2/3% of
the Outstanding Amount of each Class of the Notes of such Series. In determining
such sufficiency or insufficiency with respect to clause (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
The remedies provided in this Section 5.05(a) are the
exclusive remedies provided to the Noteholders with respect to an Event of
Default and each of the Noteholders (by their acceptance of their respective
interests in the Notes) and the Indenture Trustee hereby expressly waive any
other remedy that may be available under the applicable UCC.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V following the acceleration of the maturities of the
Notes of the affected Series pursuant to Section 5.03 (so long as such
declaration shall not have been rescinded or annulled), it shall pay out the
money or property in the following order:
FIRST: to the Indenture Trustee for amounts due pursuant to
Section 6.07;
SECOND: to Holders of the Class A Notes of such Series for
amounts due and unpaid on such Class A Notes for interest and
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Class A Notes for
interest and principal;
THIRD: to Holders of the Class B Notes of such Series for
amounts due and unpaid on such Class B Notes for interest and
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Class B Notes for
interest and principal;
FOURTH: to the Holders of the Class C Notes of such Series for
amounts due and unpaid on such Class C Notes for interest and
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Class C Notes for
interest and principal;
FIFTH: to the Holders of all other Classes of Notes, if any,
of such Series for amounts due and unpaid on such Notes for interest
and principal, according to the
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amounts due and payable on each such Class of Notes for interest and
principal, sequentially in the priority for payment under the related
Indenture Supplement; and
SIXTH: to the Issuer for distribution pursuant to Article IV
of the related Indenture Supplement.
(c) The Indenture Trustee may, upon notification to the
Issuer, fix a record date and payment date for any payment to Noteholders of the
affected Series pursuant to this Section 5.05. At least fifteen (15) days before
such record date, the Indenture Trustee shall mail or send by facsimile to each
such Noteholder a notice that states the record date, the payment date and the
amount to be paid.
(d) In addition to the application of money or property
referred to in subsection 5.05(b) for an accelerated Series, amounts then held
in the Collection Account, Special Funding Account or any Series Accounts for
such Series and any amounts available under the Series Enhancement for such
Series shall be used to make payments to the Holders of the Notes of such Series
and the Series Enhancer for such Series in accordance with the terms of this
Indenture, the related Indenture Supplement and the Series Enhancement for such
Series. Following the sale of the Collateral (or portion thereof) for a Series
and the application of the proceeds of such sale to such Series and the
application of the amounts then held in the Collection Account, the Special
Funding Account and any Series Accounts for such Series as are allocated to such
Series and any amounts available under the Series Enhancement for such Series,
such Series shall no longer be entitled to any allocation of Collections or
other property constituting the Collateral under this Indenture and the Notes of
such Series shall no longer be Outstanding.
Section 5.06. Optional Preservation of the Collateral. If the
Notes of any Series have been declared to be due and payable under Section 5.03
following an Event of Default and such declaration and its consequences have not
been rescinded and annulled, and the Indenture Trustee has not received
directions from the Noteholders pursuant to Section 5.12, the Indenture Trustee
may, but need not, elect to maintain possession of the portion of the Collateral
which secures such Notes. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal of and interest on the Notes, and the Indenture Trustee shall take
such desire into account when determining whether or not to maintain possession
of the Collateral. In determining whether to maintain possession of the
Collateral, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Collateral for such purpose.
Section 5.07. Limitation on Suits.
No Noteholder shall have any right to institute any
Proceedings, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
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(a) the Holders of not less than 25% of the Outstanding Amount
of any affected Series of Notes have made written request to the Indenture
Trustee to institute such proceeding in its own name as indenture trustee;
(b) such Noteholder or Noteholders has previously given
written notice to the Indenture Trustee of a continuing Event of Default;
(c) such Noteholder or Noteholders has offered to the
Indenture Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such 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 Indenture Trustee during such 60-day period by a majority of
the Outstanding Amount of the Notes of such Series;
it being understood and intended that no one or more Noteholders of the affected
Series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other Noteholders of such Series or to obtain or to seek to obtain
priority or preference over any other Noteholders of such Series or to enforce
any right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two (2) or more groups of
Noteholders of such affected Series, each representing less than a majority of
the Outstanding Amount of such Notes, the Indenture Trustee in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Indenture.
Section 5.08. Unconditional Rights of Noteholders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture, each
Holder of a Note shall have the right which is absolute and unconditional to
receive payment of the principal of and interest in respect of such Note as such
principal and interest becomes due and payable and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Noteholder.
Section 5.09. Restoration of Rights and Remedies.
If the Indenture Trustee or any Noteholder has instituted any
Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned, or has been determined adversely
to the Indenture Trustee or to such Noteholder, then and in every such case the
Issuer, the Indenture Trustee and the Noteholder shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former
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positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
No right, remedy, power or privilege herein conferred upon or
reserved to the Indenture Trustee or to the Noteholders is intended to be
exclusive of any other right, remedy, power or privilege, and every right,
remedy, power or privilege shall, to the extent permitted by law, be cumulative.
The assertion or exercise of any right or remedy shall not preclude any other
further assertion or the exercise of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No failure to exercise and no delay in exercising, on the part
of the Indenture Trustee or of any Noteholder or other Person, any right or
remedy occurring hereunder upon any Event of Default shall impair any such right
or remedy or constitute a waiver thereof of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article V may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
Section 5.12. Rights of Noteholders to Direct Indenture
Trustee.
A majority of the Outstanding Amount of the Notes of any
affected Series if an Event of Default with respect to such Series has occurred
and is continuing) shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee with respect to the Notes; provided, however, that subject to Section
6.01:
(a) the Indenture Trustee shall have the right to decline any
such direction if the Indenture Trustee, after being advised by
counsel, determines that the action so directed is in conflict with any
rule of law or with this Indenture, and
(b) the Indenture Trustee shall have the right to decline any
such direction if the Indenture Trustee in good faith shall, by a
Responsible Officer of the Indenture Trustee, determine that the
Proceedings so directed would be illegal or involve the Indenture
Trustee in personal liability or be unjustly prejudicial to the
Noteholders not parties to such direction.
Section 5.13. Waiver of Past Defaults.
Prior to the declaration of the acceleration of the maturity
of the Notes of the affected Series as provided in Section 5.03, a majority of
the Outstanding Amount of the Notes of such Series may, on behalf of all such
Noteholders, waive in writing any past default with respect to such Notes and
its consequences, except a default:
(a) in the payment of the principal or interest in respect of
any Note of such Series, or
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(b) in respect of a covenant or provision hereof that under
Section 10.02 hereof cannot be modified or amended without the consent
of the Noteholder of each Outstanding Note affected.
Upon any such written waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Noteholder by
its acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Indenture Trustee for any action
taken, suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply to any suit instituted
by the Indenture Trustee, to any suit instituted by any Noteholder, or group of
Noteholders (in compliance with Section 5.08 hereof), holding in the aggregate
more than 10% of the principal balance of the Outstanding Notes of the affected
Series, or to any suit instituted by any Noteholder for the enforcement of the
payment of the principal or interest in respect of any Note on or after the
Distribution Date on which any of such amounts was due (or, in the case of
redemption, on or after the applicable Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may adversely
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 Indenture Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 5.16. Sale of Receivables.
(a) The method, manner, time, place and terms of any sale of
Receivables (or interests therein) pursuant to Section 5.05(a)(iii) shall be
commercially reasonable. The Indenture Trustee may from time to time postpone
any sale by public announcement made at the time and place of such sale. The
Indenture Trustee hereby expressly waives its right to any amount fixed by law
as compensation for any sale.
(b) The Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of the Issuer in connection with any sale of
Receivables pursuant to Section
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5.05(a)(iii). No purchaser or transferee at any such sale shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(c) In its exercise of the foreclosure remedy pursuant to
Section 5.05(a)(iii), the Indenture Trustee shall solicit bids from Permitted
Assignees for the sale of Principal Receivables in an amount equal to the
product of (x) the Invested Amount with respect to the affected Series of Notes
at the time of sale and (y) a fraction, the numerator of which is one and the
denominator of which is equal to the excess of one over the Discount Percentage,
and the related Finance Charge Receivables (or interests therein). The
Transferor or any of its affiliates (other than ACCS) who are Permitted
Assignees shall be entitled to participate in, and to receive from the Indenture
Trustee a copy of each other bid submitted in connection with, such bidding
process; provided that (a) at least one participant other than the Transferor
and any of its affiliates must submit a bona fide offer, and (b) the Transferor
and any of its affiliates are prohibited from bidding an amount which exceeds
fair value for the transferred assets. The Indenture Trustee shall sell such
Receivables (or interests therein) to the bidder with the highest cash purchase
offer. The proceeds of any such sale shall be applied in accordance with Section
5.05(b).
Section 5.17. Action on Notes.
The Indenture Trustee's right to seek and recover judgment on
the Notes or under this Indenture shall not be affected by the seeking or
obtaining of or application for any other relief under or with respect to this
Indenture. Neither the lien of this Indenture nor any rights or remedies of the
Indenture Trustee or the Noteholders shall be impaired by the recovery of any
judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied as specified in the applicable Indenture Supplement.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of the Indenture Trustee.
(a) If an Event of Default has occurred and is continuing with
respect to a Series of Notes and a Trustee Officer shall have actual knowledge
or written notice of such Event of Default, the Indenture Trustee shall, prior
to the receipt of directions, if any, from a majority of the Outstanding Amount
of the Notes of such Series, exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
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(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith or negligence on its part,
the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
the Indenture Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Indenture Trustee which are specifically required to
be furnished pursuant to any provision of this Indenture or any
Indenture Supplement, shall examine them to determine whether they
substantially conform to the requirements of this Indenture or any
Indenture Supplement. The Indenture Trustee shall give prompt written
notice to the Noteholders of such Series and each Rating Agency of any
material lack of conformity of any such instrument to the applicable
requirements of this Indenture or any Indenture Supplement discovered
by the Indenture Trustee which would entitle a majority of the
Outstanding Amount of the Notes of such Series to take any action
pursuant to this Indenture or any Indenture Supplement.
(c) In case a Pay Out Event has occurred and is continuing
with respect to a Series and a Trustee Officer shall have actual knowledge or
written notice of such Pay Out Event, the Indenture Trustee shall, prior to the
receipt of directions, if any, from a majority of the Outstanding Amount of the
Notes of such Series, exercise 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 prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(d) No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection (d) shall not be construed to limit the
effect of subsection (a) of this Section 6.01;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Trustee Officer, unless it shall be
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with this Indenture and/or the direction of a
majority of the Outstanding Amount of the Notes of each outstanding
Series of Notes relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
for exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture. The Indenture Trustee shall not be liable for any
action taken, suffered or omitted to be taken by it in
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good faith in accordance with the direction of the Servicer, the
Transferor or the Trust in compliance with the terms of this Indenture
or any Indenture Supplement.
(e) No provision of this Indenture shall require the Indenture
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 shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(f) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject to subsections (a), (b), (c) and (d) of this
Section 6.01.
(g) Except as expressly provided in this Indenture, the
Indenture Trustee shall have no power to vary the Collateral, including, without
limitation, by (i) accepting any substitute payment obligation for a Receivable
initially transferred to the Trust under the Transfer and Servicing Agreement,
(ii) adding any other investment, obligation or security to the Trust or (iii)
withdrawing from the Trust any Receivable (except as otherwise provided in the
Transfer and Servicing Agreement).
(h) The Indenture Trustee shall have no responsibility or
liability for investment losses on Eligible Investments (other than Eligible
Investments on which the institution acting as Indenture Trustee is an obligor).
(i) The Indenture Trustee shall notify each Rating Agency (i)
of any change in any rating of the Notes by any other Rating Agency of which the
Indenture Trustee has actual knowledge, (ii) immediately of the occurrence of
any Event of Default or Pay Out Event of which the Indenture Trustee has actual
knowledge, (iii) immediately of potential Pay Out Events or Events of Default of
which the Indenture Trustee has actual notice from the Servicer and (iv) monthly
that no Events of Default have occurred and are continuing.
(j) For all purposes under this Indenture, the Indenture
Trustee shall not be deemed to have notice or knowledge of any Event of Default,
Pay Out Event or Servicer Default unless a Trustee Officer assigned to and
working in the Corporate Trust Office of the Indenture Trustee has actual
knowledge thereof or has received written notice thereof. For purposes of
determining the Indenture Trustee's responsibility and liability hereunder, any
reference to an Event of Default, Pay Out Event or Servicer Default shall be
construed to refer only to such event of which the Indenture Trustee is deemed
to have notice as described in this subsection 6.01(j).
Section 6.02. Notice of Pay Out Event or Event of Default.
Upon the occurrence of any Pay Out Event or Event of Default
of which a Trustee Officer has actual knowledge or has received notice thereof,
the Indenture Trustee shall transmit by mail to all Noteholders as their names
and addresses appear on the Note Register and the Rating Agencies, notice of
such Pay Out Event or Event of Default hereunder known to the Indenture Trustee
within thirty (30) days after it occurs or within ten (10) Business Days after
it receives such notice or obtains actual notice, if later.
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Section 6.03. Rights of Indenture Trustee.
Except as otherwise provided in Section 6.01 hereof:
(a) The Indenture Trustee may conclusively rely and shall
fully be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other paper or document reasonably believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) Whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Indenture
Trustee (unless other evidence is specifically prescribed herein) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate of the
Issuer. The Issuer shall provide a copy of such Officer's Certificate to the
Noteholders at or prior to the time the Indenture Trustee receives such
Officer's Certificate;
(c) As a condition to the taking, suffering or omitting of any
action by it hereunder, the Indenture Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall 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;
(d) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or to honor
the request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(e) The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, note or other paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer and the Servicer, personally or by
agent or attorney;
(f) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Indenture Trustee
shall not be responsible for (i) any misconduct or negligence on the part of any
agent, attorney, custodians or nominees appointed with due care by it hereunder
or (ii) the supervision of such agents, attorneys, custodians or nominees after
such appointment with due care;
(g) The Indenture Trustee shall not be liable for any actions
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights conferred upon the Indenture
Trustee by this Indenture; and
(h) In the event that the Indenture Trustee is also acting as
Paying Agent and Transfer Agent and Registrar, the rights and protections
afforded to the Indenture Trustee pursuant to this Article VI shall also be
afforded to such Paying Agent and Transfer Agent and Registrar.
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Section 6.04. Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except the
certificate of authentication of the Indenture Trustee, shall be taken as the
statements of the Issuer, and the Indenture Trustee assumes no responsibility
for their correctness. The Indenture Trustee makes no representation as to the
validity or sufficiency of the Agreement, the Notes, or any related document.
The Indenture Trustee shall not be accountable for the use or application by the
Issuer of the proceeds from the Notes.
Section 6.05. May Hold Notes.
The Indenture Trustee, any Paying Agent, Transfer Agent and
Registrar or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Issuer with the same rights it would have if it were not Indenture Trustee,
Paying Agent, Transfer Agent and Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Indenture Trustee in trust hereunder need
not be segregated from other funds held by the Indenture Trustee in trust
hereunder except to the extent required herein or required by law. The Indenture
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed upon in writing by the Indenture Trustee
and the Issuer.
Section 6.07. Compensation, Reimbursement and Indemnification.
The Servicer shall pay to the Indenture Trustee from time to
time reasonable compensation for all services rendered by the Indenture Trustee
under this Agreement (which compensation shall not be limited by any law on
compensation of a trustee of an express trust). The Servicer shall reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. Pursuant to the Transfer and Servicing Agreement, the
Issuer shall direct the Servicer to indemnify and the Servicer shall indemnify
the Indenture Trustee against any and all loss, liability or expense (including
the fees of either in-house counsel or outside counsel, but not both) incurred
by it in connection with the administration of this trust and the performance of
its duties hereunder. The Indenture Trustee shall notify the Issuer and the
Servicer promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee to so notify the Issuer and the Servicer shall not relieve the
Issuer or the Servicer of its obligations hereunder unless such loss, liability
or expense could have been avoided with such prompt notification and then only
to the extent of such loss, expense or liability which could have been so
avoided. The Servicer shall defend any
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claim against the Indenture Trustee; the Indenture Trustee may have separate
counsel and, if it does, the Servicer shall pay the fees and expenses of such
counsel. The Servicer need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Servicer's payment obligations to the Indenture Trustee
pursuant to this Section 6.07 shall survive the discharge of this Indenture.
When the Indenture Trustee incurs expenses after the occurrence of a Default
specified in subsection 5.02(d) or (e) with respect to the Issuer, the expenses
are intended to constitute expenses of administration under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or similar law.
Notwithstanding anything herein to the contrary, the Indenture
Trustee's right to enforce any of the Servicer's payment obligations pursuant to
this Section 6.07 shall be subject to the provisions of Section 12.16.
Section 6.08. Replacement of Indenture Trustee.
No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee shall become effective until the
acceptance of appointment by the successor Indenture Trustee pursuant to this
Section 6.08. The Indenture Trustee may resign at any time by giving thirty (30)
days written notice to the Issuer. A majority of the Outstanding Amount of the
Notes may remove the Indenture Trustee by so notifying the Indenture Trustee and
may appoint a successor Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver of the Indenture Trustee or of its property
shall be appointed, or any public officer takes charge of the Indenture
Trustee or its property or its affairs for the purpose of
rehabilitation, conservation or liquidation; or
(iv) the Indenture Trustee otherwise becomes legally unable to
act.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee, the
Administrator and the Issuer. Thereupon the resignation or removal of the
retiring Indenture Trustee shall become effective, and the successor Indenture
Trustee shall have all the rights, powers and duties of the Indenture Trustee
under this Indenture. The successor Indenture Trustee shall mail a notice of its
succession to all of the
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Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
sixty (60) days after the retiring Indenture Trustee resigns or is removed, the
retiring Indenture Trustee, the Issuer or the Holders of a majority of the
Outstanding Amount of the Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder may petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.08, the Issuer's obligations under Section 6.07 shall
continue for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger.
If the Indenture Trustee consolidates with, merges or converts
into, or transfers all or substantially all its corporate trust business or
assets to, another corporation or banking association, the resulting, surviving
or transferee corporation or banking association without any further act shall
be the successor Indenture Trustee; provided that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11. The
Indenture Trustee shall provide the Rating Agencies prior written notice of any
such transaction.
In case at the time such successor or successors by merger,
conversion, consolidation or transfer to the Indenture Trustee shall succeed to
the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee may
adopt the certificate of authentication of any predecessor Indenture Trustee and
deliver such Notes so authenticated; and in case at that time any of the Notes
shall not have been authenticated, any successor to the Indenture Trustee may
authenticate such Notes in the name of the successor to the Indenture Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Notes or in this Indenture provided that the certificate of the
Indenture Trustee shall have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Collateral, and to vest
in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Collateral, or any part hereof, and, subject to
the other provisions of this Section 6.10, such powers, duties, obligations,
rights and trusts as the Indenture Trustee may consider necessary or
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desirable. No co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Collateral or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification.
The Indenture Trustee shall at all times satisfy the
requirements of TIA Section 310(a). The Indenture Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition and its long-term unsecured debt
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shall be rated at least Baa3 by Moody's, at least BBB- by Standard & Poor's and,
if rated by Fitch, at least BBB- by Fitch. The Indenture Trustee shall comply
with TIA Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.12. Preferential Collection of Claims Against. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 6.13. Tax Returns.
In the event the Trust shall be required to file tax returns,
the Servicer shall prepare or shall cause to be prepared such tax returns and
shall provide such tax returns to the Owner Trustee for signature at least five
(5) days before such tax returns are due to be filed. The Servicer, in
accordance with the terms of each Indenture Supplement, shall also prepare or
shall cause to be prepared all tax information required by law to be distributed
to Noteholders and shall deliver such information to the Owner Trustee at least
five (5) days prior to the date it is required by law to be distributed to
Noteholders. The Owner Trustee, upon written request, will furnish the Servicer
with all such information known to the Owner Trustee as may be reasonably
requested and required in connection with the preparation of all tax returns of
the Trust, and shall, upon request, execute such returns. In no event shall the
Owner Trustee be personally liable for any liabilities, costs or expenses of the
Trust or any Noteholder arising under any tax law, including without limitation,
federal, state or local income or excise taxes or any other tax imposed on or
measured by income (or any interest or penalty with respect thereto arising from
a failure to comply therewith).
Section 6.14. Representations and Covenants of the Indenture
Trustee.
The Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of the State of New York;
(ii) The Indenture Trustee has full power and authority to
deliver and perform this Indenture and has taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture and
other Transaction Documents to which it is a party; and
(iii) Each of this Indenture and other Transaction Documents
to which it is a party has been duly executed and delivered by the Indenture
Trustee and constitutes its legal, valid and binding obligation in accordance
with its terms.
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Section 6.15. Custody of the Collateral.
The Indenture Trustee shall hold such of the Collateral as
consists of instruments, deposit accounts, negotiable documents, money, goods,
letters of credit, and advices of credit in the State of New York. The Indenture
Trustee shall hold such of the Collateral as constitutes investment property
through a securities intermediary, which securities intermediary shall agree
with the Indenture Trustee that (a) such investment property shall at all times
be credited to a securities account of the Indenture Trustee, (b) such
securities intermediary shall treat the Indenture Trustee as entitled to
exercise the rights that comprise each financial asset credited to such
securities account, (c) all property credited to such securities account shall
be treated as financial assets, (d) such securities intermediary shall comply
with entitlement orders originated by the Indenture Trustee without the further
consent of any other person or entity, (e) such securities intermediary will not
agree with any person or entity other than the Indenture Trustee to comply with
entitlement orders originated by such other person or entity, (f) such
securities accounts and the property credited thereto shall not be subject to
any lien, security interest, or right of set-off in favor of such securities
intermediary or anyone claiming through it (other than the Indenture Trustee),
and (g) such agreement shall be governed by the laws of the State of New York.
Terms used in the preceding sentence that are defined in the New York UCC and
not otherwise defined herein shall have the meaning set forth in the New York
UCC. Except as permitted by this Section 6.15, the Indenture Trustee shall not
hold any part of the Collateral through an agent or a nominee.
ARTICLE VII
NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders.
The Issuer will furnish or cause to be furnished to the
Indenture Trustee (a) upon each transfer of a Note, a list, in such form as the
Indenture Trustee may reasonably require, of the names, addresses and taxpayer
identification numbers of the Noteholders as they appear on the Note Register as
of the most recent Record Date, and (b) at such other times, as the Indenture
Trustee may request in writing, within ten (10) days after receipt by the Issuer
of any such request, a list of similar form and content as of a date not more
than ten (10) days prior to the time such list is furnished; provided, however,
that for so long as the Indenture Trustee is the Transfer Agent and Registrar,
no such list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Noteholders
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names, addresses and taxpayer identification numbers of
the Noteholders received by the Indenture Trustee in its capacity as Transfer
Agent and Registrar. The Indenture Trustee may destroy any list furnished to it
as provided in Section 7.01 upon receipt of a new list so furnished.
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(b) Noteholders may communicate, pursuant to TIA Section
312(b), with other Noteholders with respect to their rights under this Indenture
or under the Notes.
(c) The Issuer, the Indenture Trustee and the Transfer Agent
and Registrar shall have the protection of TIA Section 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days
after the Issuer 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 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this subsection 7.03(a) as may be required by rules and
regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee.
If required by TIA Section 313(a), within sixty (60) days
after each March 31 beginning with March 31, 2001, the Indenture Trustee shall
mail to each Noteholder as required by TIA Section 313(c) a brief report dated
as of such date that complies with TIA Section 313(a). The Indenture Trustee
also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and each
stock exchange, if any, on which the Notes are listed. The Issuer shall notify
the Indenture Trustee if and when the Notes are listed on any stock exchange.
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ARTICLE VIII
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 8.01. Collection of Money.
Except as otherwise expressly provided herein and in the
related Indenture Supplement, the Indenture Trustee may demand payment or
delivery of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall hold all such money and property received
by it in trust for the Noteholders and shall apply it as provided in this
Indenture. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under the Transfer
and Servicing Agreement or any other Transaction Document, the Indenture Trustee
may, and upon the request of a majority of the Holders of the Outstanding Amount
of the Notes of an affected Series shall, take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Pay Out Event or a Default or Event of Default
under this Indenture and to proceed thereafter as provided in Article V hereof.
Section 8.02. Rights of Noteholders.
The Collateral shall secure the obligation of the Trust to pay
to the Holders of the Notes of each Series principal and interest and other
amounts payable pursuant to this Indenture and the related Indenture Supplement.
Except as specifically set forth in the Indenture Supplement with respect
thereto, the Notes of any Series or Class shall not have rights to payment from
any Series Account or Series Enhancement allocated for the benefit of any other
Series or Class.
Section 8.03. Establishment of Collection Account and Special
Funding Account.
The Servicer, for the benefit of the Noteholders, shall
establish and maintain with the Indenture Trustee or its nominee in the name of
the Indenture Trustee, on behalf of the Trust, a Qualified Account (including
any subaccount thereof) bearing a designation clearly indicating that the funds
and other property credited thereto are held for the benefit of the Noteholders
(the "COLLECTION ACCOUNT"). The Indenture Trustee shall possess all right, title
and interest in all monies, instruments, investment property, documents,
certificates of deposit and other property credited from time to time to the
Collection Account and in all proceeds, earnings, income, revenue, dividends and
distributions thereof for the benefit of the Noteholders.
The Collection Account shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Noteholders. Except as
expressly provided in this Indenture and the Transfer and Servicing Agreement,
the Servicer agrees that it shall have no right of setoff or banker's lien
against, and no right to otherwise deduct from, any funds held in the Collection
Account for any amount owed to it by the Indenture Trustee, the Trust, any
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Noteholder or any Series Enhancer. If, at any time, the Collection Account
ceases to be a Qualified Account, the Indenture Trustee (or the Servicer on its
behalf) shall within ten (10) Business Days (or such longer period, not to
exceed thirty (30) calendar days, as to which each Rating Agency may consent)
establish a new Collection Account meeting the conditions specified above,
transfer any monies, documents, instruments, investment property, certificates
of deposit and other property to such new Collection Account and from the date
such new Collection Account is established, it shall be the "COLLECTION
ACCOUNT." Pursuant to the authority granted to the Servicer in subsection
3.01(b) of the Transfer and Servicing Agreement, the Servicer shall have the
power, revocable by the Indenture Trustee, to make withdrawals and payments from
the Collection Account and to instruct the Indenture Trustee to make withdrawals
and payments from the Collection Account for the purposes of carrying out the
Servicer's or the Indenture Trustee's duties hereunder and under the Transfer
and Servicing Agreement, as applicable. The Servicer shall reduce deposits into
the Collection Account payable by the Transferor on any Deposit Date to the
extent the Transferor is entitled to receive funds from the Collection Account
on such Deposit Date, but only to the extent such reduction would not reduce the
Transferor Interest to an amount less than the Required Transferor Interest.
Funds on deposit in the Collection Account (other than
investment earnings and amounts deposited pursuant to Section 2.06, 6.01, or
7.01 of the Transfer and Servicing Agreement or Section 11.02 of this Indenture)
shall at the written direction of the Servicer be invested by the Indenture
Trustee in Eligible Investments selected by the Servicer. All such Eligible
Investments shall be held by the Indenture Trustee for the benefit of the
Noteholders pursuant to Section 6.15. Investments of funds representing
Collections collected during any Monthly Period shall be invested in Eligible
Investments that will mature so that such funds will be available no later than
the close of business on each monthly Transfer Date following such Monthly
Period in amounts sufficient to the extent of such funds to make the required
distributions on the following Distribution Date. No such Eligible Investment
shall be disposed of prior to its maturity; provided, however, that the
Indenture Trustee may sell, liquidate or dispose of any such Eligible Investment
before its maturity, at the written direction of the Servicer, if such sale,
liquidation or disposal would not result in a loss of all or part of the
principal portion of such Eligible Investment or if, prior to the maturity of
such Eligible Investment, a default occurs in the payment of principal, interest
or any other amount with respect to such Eligible Investment. Unless directed by
the Servicer, funds deposited in the Collection Account on a Transfer Date with
respect to the immediately succeeding Distribution Date are not required to be
invested overnight. On each Distribution Date, all interest and other investment
earnings (net of losses and investment expenses) on funds on deposit in the
Collection Account shall be paid to the Transferor, except as otherwise
specified in any Indenture Supplement. The Indenture Trustee shall bear no
responsibility or liability for any losses resulting from investment or
reinvestment of any funds in accordance with this Section 8.03 nor for the
selection of Eligible Investments in accordance with the provisions of this
Indenture and any Indenture Supplement (other than Eligible Investments on which
the institution acting as Indenture Trustee is an obligor).
The Servicer, for the benefit of the Noteholders, shall
establish and maintain with the Indenture Trustee or its nominee in the name of
the Indenture Trustee, on behalf of the Trust, a Qualified Account (including
any subaccounts thereof) bearing a designation clearly indicating
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that the funds and other property credited thereto are held for the benefit of
the Noteholders (the "SPECIAL FUNDING ACCOUNT"). The Indenture Trustee shall
possess all right, title and interest in all monies, instruments, investment
property, documents, certificates of deposit and other property credited from
time to time to the Special Funding Account and in all proceeds, dividends,
distributions, earnings, income and revenue thereof for the benefit of the
Noteholders. The Special Funding Account shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Noteholders. Except as
expressly provided in this Indenture and the Transfer and Servicing Agreement,
the Servicer shall have no right of setoff or banker's lien against, and no
right to otherwise deduct from, any funds and other property held in the Special
Funding Account for any amount owed to it by the Indenture Trustee, the Trust,
any Noteholder or any Series Enhancer. If, at any time, the Special Funding
Account ceases to be a Qualified Account, the Indenture Trustee (or the Servicer
on its behalf) shall within ten (10) Business Days (or such longer period, not
to exceed thirty (30) calendar days, as to which each Rating Agency may consent)
establish a new Special Funding Account meeting the conditions specified above,
transfer any monies, documents, instruments, investment property, certificates
of deposit and other property to such new Special Funding Account and from the
date such new Special Funding Account is established, it shall be the "SPECIAL
FUNDING ACCOUNT."
Funds on deposit in the Special Funding Account shall at the
written direction of the Servicer be invested by the Indenture Trustee in
Eligible Investments selected by the Servicer. All such Eligible Investments
shall be held by the Indenture Trustee for the benefit of the Noteholders
pursuant to Section 6.15. Funds on deposit in the Special Funding Account on any
Distribution Date will be invested in Eligible Investments that will mature so
that such funds will be available no later than the close of business on the
Transfer Date following such Monthly Period. No such Eligible Investment shall
be disposed of prior to its maturity; provided, however, that the Indenture
Trustee may sell, liquidate or dispose of an Eligible Investment before its
maturity, at the written direction of the Servicer, if such sale, liquidation or
disposal would not result in a loss of all or part of the principal portion of
such Eligible Investment or if, prior to the maturity of such Eligible
Investment, a default occurs in the payment of principal, interest or any other
amount with respect to such Eligible Investment. Unless directed by the
Servicer, funds deposited in the Special Funding Account on a Transfer Date with
respect to the immediately succeeding Distribution Date are not required to be
invested overnight. On each Distribution Date, all interest and other investment
earnings (net of losses and investment expenses) on funds on deposit in the
Special Funding Account shall be treated as Collections of Finance Charge
Receivables with respect to the last day of the related Monthly Period except as
otherwise specified in the related Indenture Supplement. On each Business Day on
which funds are on deposit in the Special Funding Account and on which no Series
is in an Accumulation Period or Amortization Period, the Servicer shall
determine the amount (if any) by which the Transferor Interest exceeds the
Required Transferor Interest on such date and shall instruct the Indenture
Trustee to withdraw any such excess from the Special Funding Account and pay
such amount to the Holders of the Transferor Certificates; provided, however,
that, if an Accumulation Period or Amortization Period has commenced and is
continuing with respect to one or more outstanding Series, any funds on deposit
in the Special Funding Account shall be treated as Shared Principal Collections
and shall be allocated and distributed in accordance with Section 8.05 and the
terms of each Indenture Supplement.
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Section 8.04. Collections and Allocations.
(a) The Servicer will apply or will instruct the Indenture
Trustee to apply all funds on deposit in the Collection Account as described in
this Article VIII and in each Indenture Supplement. Except as otherwise provided
below, the Servicer shall deposit Collections into the Collection Account as
promptly as possible after the Date of Processing of such Collections, but in no
event later than the second Business Day following the Date of Processing.
Subject to the express terms of any Indenture Supplement, but notwithstanding
anything else in this Indenture or the Transfer and Servicing Agreement to the
contrary, for so long as any of the following conditions are satisfied: (i) ANB
remains the Servicer; AFCC guarantees the performance of the Servicer's
obligations (unless the Rating Agencies shall consent to the deletion of such
guarantee) and maintains a commercial paper rating of not less than A-1 by
Standard & Poor's, not less than P-1 by Moody's and, if rated by Fitch, not less
than F1 by Fitch, and ANB remains a wholly-owned AFCC subsidiary (directly or
indirectly) and in the event that there is any material change in the financing
relationship between ANB and AFCC, (A) ANB shall have notified each Rating
Agency and (B) the Rating Agency Condition shall be satisfied with respect to
such material change, or (ii) any other arrangements are made such that the
Rating Agency Condition is satisfied with respect thereto, and for five (5)
Business Days following any reduction of any such rating or change in ownership,
the Servicer need not make the daily deposits of Collections into the Collection
Account as provided in the preceding sentence, but may make a single deposit in
the Collection Account in immediately available funds not later than 1:00 p.m.,
New York City time, on the Distribution Date following the Monthly Period with
respect to which such deposit relates. Subject to the first proviso in Section
8.05, but notwithstanding anything else in this Indenture or the Transfer and
Servicing Agreement to the contrary, with respect to any Monthly Period, whether
the Servicer is required to make deposits of Collections pursuant to the first
or the second preceding sentence, (i) the Servicer will only be required to
deposit Collections into the Collection Account up to the aggregate amount of
Collections required to be deposited into any Series Account or, without
duplication, distributed on or prior to the related Distribution Date to
Noteholders or to any Series Enhancer pursuant to the terms of any Indenture
Supplement or Enhancement Agreement and (ii) if at any time prior to such
Distribution Date the amount of Collections deposited in the Collection Account
exceeds the amount required to be deposited pursuant to clause (i) above, the
Servicer will be permitted to withdraw the excess from the Collection Account
and pay such amounts pursuant to the terms of the Transaction Documents. Subject
to the immediately preceding sentence, the Servicer may retain its Servicing Fee
with respect to a Series and shall not be required to deposit it in the
Collection Account. To the extent that, in accordance with this subsection
8.04(a), the Servicer has retained amounts which would otherwise be required to
be deposited into the Collection Account or any Series Account with respect to
any Monthly Period, the Servicer shall be required to deposit such amounts in
the Collection Account or such Series Account on the related Distribution Date
to the extent necessary to make required distributions on the related
Distribution Date, including any amounts which are required to be applied as
Reallocated Principal Collections, and pay any amounts remaining after making
such deposit pursuant to the terms of the Transaction Documents.
(b) Collections of Finance Charge Receivables, Principal
Receivables and Defaulted Receivables will be allocated to each Series of Notes
and to the Holders of the Transferor Certificates in accordance with this
Article VIII and each Indenture Supplement and
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amounts so allocated to any Series will not, except as specified in the related
Indenture Supplement, be available to the Noteholders of any other Series.
Allocations of the foregoing amounts between the Holders of the Notes and the
Holders of the Transferor Certificates, among the Series and among the Classes
in any Series, shall be set forth in the related Indenture Supplement or
Indenture Supplements.
Section 8.05. Shared Principal Collections and Shared
Transferor Principal Collections.
(a) On each Distribution Date, (a) the Servicer shall allocate
Shared Principal Collections (as described below) to each Principal Sharing
Series, pro rata, in proportion to the Principal Shortfalls, if any, with
respect to each such Series and (b) the Servicer shall withdraw from the
Collection Account and pay to the Holders of the Transferor Certificates an
amount equal to the excess, if any, of (x) the aggregate amount for all
outstanding Series of Collections of Principal Receivables which the related
Indenture Supplements specify are to be treated as "SHARED PRINCIPAL
COLLECTIONS" for such Distribution Date over (y) the aggregate amount for all
outstanding Series which the related Indenture Supplements specify are
"PRINCIPAL SHORTFALLS" for such Series and for such Distribution Date; provided,
however, that if the Transferor Interest as of such Distribution Date
(determined after giving effect to the Principal Receivables or Participation
Interests transferred to the Trust on such date) is less than the Required
Transferor Interest, the Servicer will not distribute to the Holders of the
Transferor Certificates any such amounts that otherwise would be distributed to
the Holders of the Transferor Certificates, but shall deposit such funds in the
Special Funding Account. The Transferor may, at its option, instruct the
Indenture Trustee to deposit Shared Principal Collections which are otherwise
payable to the Holders of the Transferor Certificates pursuant to the provisions
set forth above into the Special Funding Account. Notwithstanding the foregoing,
a Group of Series may specify in their related Indenture Supplements that Shared
Principal Collections from such Series shall be allocated as provided above but
only among the Series in such Group.
(b) The Servicer will determine the amount of Collections of
Principal Receivables for any Monthly Period allocated to the Holders of the
Transferor Certificates but not due to any Participant in the Transferor
Certificates or the Holder of any Supplemental Certificate and other amounts
payable to the Transferor with respect to Collections of Principal Receivables,
regardless of whether such Collections were initially allocated to the
Transferor or any Series ("SHARED TRANSFEROR PRINCIPAL COLLECTIONS"). The
Servicer will allocate the Shared Transferor Principal Collections to cover any
Principal Shortfalls that have not been covered out of the Shared Principal
Collections allocated to each Series that has been designated in the applicable
Indenture Supplement as being entitled to receive Shared Transferor Principal
Collections, and the remaining Shared Transferor Principal Collections, if any,
will be paid to the Holders of the Transferor Certificates. If Principal
Shortfalls remaining after the application of Shared Principal Collections
exceed Shared Transferor Principal Collections for any Monthly Period, Shared
Transferor Principal Collections will be allocated pro rata among each Series
which in accordance with the Indenture Supplement for such Series is designated
as being entitled to received Shared Transferor Principal Collections.
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Section 8.06. Additional Withdrawals from the Collection
Account.
On or before the Determination Date with respect to any
Monthly Period, the Servicer shall determine the amounts payable to ANB or any
other Account Owner with respect to such Monthly Period under the applicable
Receivables Purchase Agreement in respect of amounts credited to the Collection
Account that were not transferred to the Trust hereunder, and the Servicer shall
withdraw such amounts from the Collection Account and pay such amounts to ACCS
for distribution to ANB or any other Account Owner, as applicable.
Section 8.07. Allocation of Collateral to Series or Groups.
To the extent so provided in the Indenture Supplement for any
Series or in an Indenture Supplement otherwise executed pursuant to Section
10.01, Receivables conveyed to the Trust pursuant to Section 2.01 of the
Transfer and Servicing Agreement and Receivables or Participation Interests
conveyed to the Trust pursuant to Section 2.09 of the Transfer and Servicing
Agreement or any Participation Interest Supplement, and all Collections received
with respect thereto may be allocated or applied in whole or in part to one or
more Series or Groups as may be provided in such Indenture Supplement; provided,
however, that any such allocation or application shall be effective only upon
satisfaction of the following conditions:
(i) on or before the fifth Business Day immediately preceding
such allocation, the Servicer shall have given the Indenture Trustee
and each Rating Agency written notice of such allocation;
(ii) the Rating Agency Condition shall have been satisfied
with respect to such allocation; and
(iii) the Servicer shall have delivered to the Indenture
Trustee an Officer's Certificate, dated the date of such allocation, to
the effect that the Servicer reasonably believes that such allocation
will not have an Adverse Effect.
Any such Indenture Supplement may provide that (i) such
allocation to one or more particular Series or Groups may terminate upon the
occurrence of certain events specified therein and (ii) that upon the occurrence
of any such event, such assets and any Collections with respect thereto, shall
be reallocated to other Series or Groups or to all Series, all as shall be
provided in such Indenture Supplement.
Section 8.08. Excess Finance Charge Collections.
On each Distribution Date, (a) the Servicer shall allocate
Excess Finance Charge Collections (as described below) to each Excess Allocation
Series, pro rata, in proportion to the Finance Charge Shortfalls (as described
below), if any, with respect to each such Series and (b) the Servicer shall
withdraw from the Collection Account and pay to the Holders of the Transferor
Certificates an amount equal to the excess, if any, of (x) the aggregate amount
for all outstanding Series of Collections of Finance Charge Receivables which
the related Supplements specify are to be treated as "EXCESS FINANCE CHARGE
COLLECTIONS" for such Distribution Date over (y) the aggregate amount for all
outstanding Series which the related Supplements specify
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are "FINANCE CHARGE SHORTFALLS" for such Series and such Distribution Date;
provided, however, that the sharing of Excess Finance Charge Collections among
Series will continue only until such time, if any, at which the Transferor shall
deliver to the Indenture Trustee an Officer's Certificate to the effect that, in
the reasonable belief of the Transferor, the continued sharing of Excess Finance
Charge Collections among Series would have adverse regulatory implications with
respect to an Account Owner. Notwithstanding the foregoing, a Group of Series
may specify in their related Indenture Supplements that Excess Finance Charge
Collections from such Series shall be allocated as provided above but only among
the Series in such Group.
Section 8.09. Release of Collateral; Eligible Loan Documents.
(a) The Indenture Trustee may, and when required by the
provisions of this Indenture shall, execute instruments to release property from
the lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances which are not inconsistent with the
provisions of this Indenture. No party relying upon an instrument executed by
the Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(b) In order to facilitate the servicing of the Receivables by
the Servicer, the Indenture Trustee upon Issuer Order shall authorize the
Servicer to execute in the name and on behalf of the Indenture Trustee
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and other comparable instruments with respect to the Receivables (and
the Indenture Trustee shall execute any such documents on request of the
Servicer), subject to the obligations of the Servicer under the Transfer and
Servicing Agreement.
(c) The Indenture Trustee shall, at such time as there are no
Notes outstanding, release and transfer, without recourse, all of the Collateral
that secured the Notes (other than any cash held for the payment of the Notes
pursuant to Section 4.02). The Indenture Trustee shall release property from the
lien of this Indenture pursuant to this Section 8.09(c) only upon receipt of an
Issuer Order accompanied by an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in accordance with TIA Section
314(c) and 314(d)(1) meeting the applicable requirements of Section 12.01.
(d) Notwithstanding anything to the contrary in this
Indenture, the Transfer and Servicing Agreement and the Trust Agreement,
immediately prior to the release of any portion of the Collateral or any funds
on deposit in the Series Accounts pursuant to this Indenture, the Indenture
Trustee shall remit to the Transferor for its own account any funds that, upon
such release, would otherwise be remitted to the Issuer.
Section 8.10. Opinion of Counsel.
The Indenture Trustee shall receive at least seven (7) days
notice when requested by the Issuer to take any action pursuant to subsection
8.09(a), accompanied by copies of any instruments involved, and the Indenture
Trustee shall also require, as a condition to such action, an Opinion of
Counsel, in form and substance reasonably satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and
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concluding that all conditions precedent to the taking of such action have been
complied with and such action will not materially and adversely impair the
security for the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair value of the
Collateral. The Indenture Trustee and counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
Distributions shall be made to, and reports shall be provided
to, Noteholders as set forth in the applicable Indenture Supplement. The
identity of the Noteholders with respect to distributions and reports shall be
determined according to the immediately preceding Record Date.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies with respect to the Notes of all Series, the
Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any
time and from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the TIA as in force at the date
of the execution thereof), in form satisfactory to the Indenture Trustee, for
any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with Section
3.11 hereof, of another person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
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questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not adversely affect the
interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor indenture trustee with respect to
the Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of the
trusts hereunder by more than one indenture trustee, pursuant to the
requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA;
(viii) to provide for the issuance of one or more new Series
of Notes, in accordance with the provisions of Section 2.12 hereof; or
(ix) to provide for the termination of any interest rate swap
agreement or other form of credit enhancement in accordance with the
provisions of the related Indenture Supplement.
The Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any Noteholders of any Series
then Outstanding but upon satisfaction of the Rating Agency Condition with
respect to the Notes of all Series, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however that (i) the Transferor shall have delivered to the
Indenture Trustee an Officer's Certificate, dated the date of any such action,
stating that the Transferor reasonably believes that such action will not have
an Adverse Effect and (ii) a Tax Opinion shall have been delivered to each
Rating Agency. Additionally, notwithstanding the preceding sentence, the Issuer
and the Indenture Trustee, when authorized by an Issuer Order, may, without the
consent of any Noteholders of any Series then Outstanding or the Series
Enhancers for any Series, enter into an indenture or indentures supplemental
hereto to add, modify or eliminate such provisions as may be necessary or
advisable in order to enable all or a portion of the Trust (i) to qualify as,
and to permit an election to be made to cause the Trust to be treated as, a
"financial asset securitization investment trust" as described in the provisions
of Section 860L of the Code, and (ii) to avoid the imposition of state or local
income or franchise taxes imposed on the Trust's property or its income;
provided, however, that (i) the Transferor delivers to the Indenture Trustee and
the Owner Trustee an Officer's Certificate to the effect that the proposed
amendments meet the requirements set forth in this subsection 10.01(b), (ii) the
Rating Agency Condition will have been satisfied and (iii) such amendment does
not affect the rights, duties or obligations of the Indenture Trustee or the
Owner Trustee hereunder. The amendments which the Transferor may make without
the consent
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of Noteholders pursuant to the preceding sentence may include, without
limitation, the addition of a sale of Receivables.
Section 10.02. Supplemental Indentures with Consent of
Noteholders.
The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, also may, upon satisfaction of the Rating Agency Condition and
with the consent of the Holders of not less than a majority of the Outstanding
Amount of the Notes of each adversely affected Series of Notes, by Act of such
Holders delivered to the Issuer and the Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of such Noteholders
under this Indenture; provided, however that no such supplemental indenture
shall, without the consent of the Holder of each outstanding Note affected
thereby:
(a) change the due date of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest rate
specified thereon or the redemption price with respect thereto or change any
place of payment where, or the coin or currency in which, any Note or any
interest thereon is payable;
(b) impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(c) reduce the percentage of the Outstanding Amount of the
Notes of any Series outstanding the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences as provided for in this
Indenture;
(d) reduce the percentage of the aggregate outstanding amount
of any Notes, the consent of the Holders of which is required to direct the
Indenture Trustee to sell or liquidate the Collateral if the proceeds of such
sale would be insufficient to pay the principal amount and accrued but unpaid
interest on the outstanding Notes of such Series;
(e) decrease the percentage of the aggregate principal amount
of the Notes required to amend the sections of this Indenture which specify the
applicable percentage of the aggregate principal amount of the Notes of such
Series necessary to amend the Indenture or any Transaction Documents which
require such consent;
(f) modify or alter the provisions of this Indenture
prohibiting the voting of Notes held by the Trust, any other obligor on the
Notes, a Seller or any affiliate thereof; or
(g) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Collateral for any Notes or, except as otherwise permitted or contemplated
herein, terminate the lien of this Indenture on any such Collateral at
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any time subject hereto or deprive the Holder of any Note of the security
provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination shall
be conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Indenture Trustee shall not be liable
for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under
this Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any Supplement Indenture pursuant to this Section 10.02, the
Indenture Trustee shall mail to the Holders of the Notes to which such amendment
or supplemental indenture relates written notice setting forth in general terms
the substance of such Supplement Indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
Section 10.03. Execution of Supplemental Indentures.
In executing, or permitting the additional trusts created by,
any supplemental indenture permitted by this Article X or the modification
thereby of the trusts created by this Indenture, the Indenture Trustee shall be
entitled to receive, and subject to Sections 6.01 and 6.02, shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee or Owner Trustee may, but shall not be obligated to, enter
into any such supplemental indenture that affects the Indenture Trustee's or
Owner Trustee's (as such or in its individual capacity) own rights, duties,
liabilities, benefits, protections, privileges or immunities under this
Indenture or otherwise.
Section 10.04. Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture under this
Article X, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes, and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 10.05. Conformity With Trust Indenture Act.
Every amendment of this Indenture and every supplemental
indenture executed pursuant to this Article X shall conform to the requirements
of the TIA as then in effect so long as this Indenture shall then be qualified
under the TIA.
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Section 10.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article X may, and if required by the
Indenture Trustee shall, bear a notation in form approved by the Indenture
Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for the outstanding Notes.
ARTICLE XI
TERMINATION
Section 11.01. Termination of Trust.
The Trust and the respective obligations and responsibilities
of the Indenture Trustee created hereby (other than the obligation of the
Indenture Trustee to make payments to Noteholders as hereinafter set forth)
shall terminate, except with respect to the duties described in subsection
11.02(b), as provided in the Trust Agreement.
Section 11.02. Final Distribution.
(a) The Servicer shall give the Indenture Trustee at least
thirty (30) days prior notice of the Distribution Date on which the Noteholders
of any Series or Class may surrender their Notes for payment of the final
distribution on and cancellation of such Notes (or, in the event of a final
distribution resulting from the application of Section 2.06, 6.01 or 7.01 of the
Transfer and Servicing Agreement, notice of such Distribution Date promptly
after the Servicer has determined that a final distribution will occur, if such
determination is made less than thirty (30) days prior to such Distribution
Date). Such notice shall be accompanied by an Officer's Certificate setting
forth the information specified in Section 3.05 of the Transfer and Servicing
Agreement covering the period during the then-current calendar year through the
date of such notice. Not later than the fifth day of the month in which the
final distribution in respect of such Series or Class is payable to Noteholders,
the Indenture Trustee shall provide notice to Noteholders of such Series or
Class specifying (i) the date upon which final payment of such Series or Class
will be made upon presentation and surrender of Notes of such Series or Class at
the office or offices therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such payment date
is not applicable, payments being made only upon presentation and surrender of
such Notes at the office or offices therein specified (which, in the case of
Bearer Notes, shall be outside the United States). The Indenture Trustee shall
give such notice to the Transfer Agent and Registrar and the Paying Agent at the
time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of
any Series or Class (or the termination of the Trust), except as otherwise
provided in this paragraph, all funds then on deposit in the Collection Account
and any Series Account allocated to such Noteholders shall continue to be held
in trust for the benefit of such Noteholders and the Paying Agent or the
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Indenture Trustee shall pay such funds to such Noteholders upon surrender of
their Notes, if certificated (and any excess shall be paid in accordance with
the terms of any Enhancement Agreement). In the event that all such Noteholders
shall not surrender their Notes for cancellation within six (6) months after the
date specified in the notice from the Indenture Trustee described in paragraph
(a), the Indenture Trustee shall give a second notice to the remaining such
Noteholders to surrender their Notes for cancellation and receive the final
distribution with respect thereto (which surrender and payment, in the case of
Bearer Notes, shall be outside the United States). If within one year after the
second notice all such Notes shall not have been surrendered for cancellation,
the Indenture Trustee may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining such Noteholders concerning
surrender of their Notes, and the cost thereof shall be paid out of the funds in
the Collection Account or any Series Account held for the benefit of such
Noteholders. The Indenture Trustee and the Paying Agent shall pay to the Issuer
any monies held by them for the payment of principal or interest that remains
unclaimed for two (2) years. After payment to the Issuer, Noteholders entitled
to the money must look to the Issuer for payment as general creditors unless an
applicable abandoned property law designates another Person.
Section 11.03. Termination Distributions.
Upon the termination of the Trust pursuant to the terms of the
Trust Agreement, the Indenture Trustee shall assign and convey to the Holders of
the Transferor Certificates or any of their designees, without recourse,
representation or warranty, all right, title and interest of the Trust in the
Receivables, whether then existing or thereafter created, all Interchange and
Recoveries related thereto, all monies due or to become due and all amounts
received or receivable with respect thereto (including all moneys then held in
the Collection Account or any Series Account) and all proceeds thereof, except
for amounts held by the Indenture Trustee pursuant to subsection 11.02(b). The
Indenture Trustee shall execute and deliver such instruments of transfer and
assignment, in each case without recourse, as shall be reasonably requested by
the Holders of the Transferor Certificates to vest in the Holders of the
Transferor Certificates or any of their designees all right, title and interest
which the Indenture Trustee had in the Collateral and such other property.
Section 11.04. Defeasance.
Notwithstanding anything to the contrary in this Indenture or
any Indenture Supplement:
(a) The Issuer may at its option be discharged from its
obligations hereunder with respect to any Series or all outstanding Series
(each, a "DEFEASED SERIES") on the date the applicable conditions set forth in
subsection 11.04(c) are satisfied (a "DEFEASANCE"); provided, however, that the
following rights, obligations, powers, duties and immunities shall survive with
respect to each Defeased Series until otherwise terminated or discharged
hereunder: (i) the rights of the Holders of Notes of the Defeased Series to
receive, solely from the trust fund provided for in subsection 11.04(c),
payments in respect of principal of and interest on such Notes when such
payments are due; (ii) the Issuer's obligations with respect to such Notes under
Sections 2.05 and 2.06; (iii) the rights, powers, trusts, duties, and immunities
of the Indenture Trustee, the Paying Agent and the Registrar hereunder; and (iv)
this Section 11.04 and Section 12.16.
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(b) Subject to subsection 11.04(c), the Issuer at its option
may cause Collections allocated to each Defeased Series and available to
purchase additional Receivables to be applied to purchase Eligible Investments
rather than additional Receivables.
(c) The following shall be the conditions precedent to any
Defeasance under subsection 11.04(a):
(i) the Issuer irrevocably shall have deposited or caused to
be deposited with the Indenture Trustee (such deposit to be made from
other than the Issuer's or any Affiliate of the Issuer's funds), under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Indenture Trustee, as trust funds in trust for
making the payments described below, (A) Dollars in an amount equal to,
or (B) Eligible Investments which through the scheduled payment of
principal and interest in respect thereof will provide, not later than
the due date of payment thereon, money in an amount equal to, or (C) a
combination thereof, in each case sufficient to pay and discharge
(without relying on income or gain from reinvestment of such amount),
and which shall be applied by the Indenture Trustee to pay and
discharge, all remaining scheduled interest and principal payments on
all outstanding Notes of each Defeased Series on the dates scheduled
for such payments in this Indenture and the applicable Indenture
Supplements and all amounts owing to the Series Enhancers with respect
to each Defeased Series;
(ii) a statement from a firm of nationally recognized
independent public accountants (who may also render other services to
the Issuer) to the effect that such deposit is sufficient to pay the
amounts specified in clause (i) above;
(iii) prior to its first exercise of its right pursuant to
this Section 11.04 with respect to a Defeased Series to substitute
money or Eligible Investments for Receivables, the Issuer shall have
delivered to the Indenture Trustee an Opinion of Counsel to the effect
contemplated by clause (b) of the definition in this Indenture of the
term "TAX OPINION" (the preparation and delivery of which shall not be
at the expense of the Indenture Trustee) with respect to such deposit
and termination of obligations, and an Opinion of Counsel to the effect
that such deposit and termination of obligations will not result in the
Trust being required to register as an "investment company" within the
meaning of the Investment Company Act;
(iv) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate of the Transferor stating that the Transferor
reasonably believes that such deposit and termination of obligations
will not, based on the facts known to such officer at the time of such
certification, then cause a Pay Out Event with respect to any Series or
any event that, with the giving of notice or the lapse of time, would
result in the occurrence of a Pay Out Event with respect to any Series;
and
(v) the Rating Agency Condition shall have been satisfied and
the Issuer shall have delivered copies of such written notice to the
Servicer and the Indenture Trustee.
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ARTICLE XII
MISCELLANEOUS
Section 12.01. Compliance Certificates and Opinions etc.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Issuer shall furnish to the Indenture Trustee (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section 12.01, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in subsection
12.01(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within ninety (90) days of such deposit)
to the Issuer of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (i)
above, the Issuer shall also deliver to the Indenture Trustee
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(if required by the TIA) an Independent Certificate as to the same
matters, if the fair value to the Issuer of the securities to be so
deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current fiscal
year of the Issuer, as set forth in the certificates delivered pursuant
to clause (i) above and this clause (ii), is 10% or more of the
Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited if the fair value
thereof to the Issuer as set forth in the related Officer's Certificate
is less than $25,000 or less than one percent of the Outstanding Amount
of the Notes.
(iii) Other than with respect to the release of any Defaulted
Receivables and Receivables in Removed Accounts, whenever any property
or securities is to be released from the lien of this Indenture, the
Issuer shall also furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within ninety (90) days of such
release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will
not impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish to the Indenture Trustee (if
required by the TIA) an Independent Certificate as to the same matters
if the fair value of the property or securities and of all other
property, other than Defaulted Receivables and Receivables in Removed
Accounts, or securities released from the lien of this Indenture since
the commencement of the then current calendar year, as set forth in the
certificates required by clause (iii) above and this clause (iv),
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.11 or any other provision of
this Section 12.01, the Issuer may (A) collect, liquidate, sell or
otherwise dispose of Receivables as and to the extent permitted or
required by the Transaction Documents and (B) make cash payments out of
the Series Accounts as and to the extent permitted or required by the
Transaction Documents.
Section 12.02. Form of Documents Delivered to Indenture
Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, a Seller, the Issuer or the Administrator,
stating that the information with respect to such factual matters is in the
possession of the Servicer, a Seller, the Issuer or the Administrator, unless
such an Authorized Officer or Counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two (2)
or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
Section 12.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agent
duly appointed in writing and satisfying any requisite percentages as to minimum
number or dollar value of outstanding principal amount represented by such
Noteholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section 12.03.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
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(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
(and any transferee thereof) of every Note issued upon the registration thereof
in exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Indenture Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.
Section 12.04. Notices, Etc. to Indenture Trustee and Issuer.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or permitted
by the Agreement to be made upon, given or furnished to, or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to a Trustee Officer, by facsimile transmission or by other
means acceptable to the Indenture Trustee to or with the Indenture Trustee at
its Corporate Trust Office; or
(b) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Issuer addressed to it at Wilmington Trust
Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Department, or at any other address
previously furnished in writing to the Indenture Trustee by the Issuer. A copy
of each notice to the Issuer shall be sent in writing and mailed, first-class
postage prepaid, to the Administrator at 000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx,
Xxxxx 00000.
Section 12.05. Notices to Noteholders; Waiver.
Where the Indenture provides for notice to Noteholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed by registered or certified mail or
first class postage prepaid or national overnight courier service to each
Noteholder affected by such event, at its address as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
which is mailed in the manner herein provided shall conclusively be presumed to
have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In the event that, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture,
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then any manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to any Rating Agency,
failure to give such notice shall not affect any other rights or obligations
created hereunder and shall not under any circumstance constitute a Default or
Event of Default.
Section 12.06. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the
Notes to the contrary, the Issuer, with the consent of the Indenture Trustee,
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer will furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee will cause payments to be made and
notices to be given in accordance with such agreements.
Section 12.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this Indenture by
any of the provisions of the TIA, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
Section 12.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 12.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer
shall bind its successors and assigns, whether so expressed or not.
Section 12.10. Separability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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Section 12.11. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Noteholders, the Servicer and the Transferor, any benefit.
Section 12.12. Legal Holidays.
In any case where the date on which any payment is due shall
not be a Business Day, then (notwithstanding any other provision of the Notes or
this Indenture) payment need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
date on which nominally due, and no interest shall accrue for the period from
and after any such nominal date.
Section 12.13. GOVERNING LAW.
THE INDENTURE AND EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED THEREIN.
Section 12.14. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 12.15. Trust Obligation.
No recourse may be taken, directly or indirectly, with respect
to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under this Indenture or any certificate or other writing delivered
in connection herewith or therewith, against (i) the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the performance of
any duties or obligations hereunder, the Owner Trustee (as such or in its
individual capacity) shall be subject to, and entitled to the benefits of, the
terms and provisions of the Trust Agreement.
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Section 12.16. No Petition.
The Indenture Trustee, by entering into this Indenture, and
each Noteholder, by accepting a Note, hereby covenant and agree that they will
not at any time institute against the Issuer or the Transferor, or join in
instituting against the Issuer or the Transferor, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers thereunto
duly authorized and attested, all as of the day and year first above written.
ASSOCIATES CREDIT CARD MASTER
NOTE TRUST,
as Issuer
By: Wilmington Trust Company,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ XXXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Financial Services Officer
THE BANK OF NEW YORK,
as Indenture Trustee
By: /s/ XXXXXXXXX XXXXX
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Assistant Treasurer
[Signature Page to Amended and Restated Master Indenture]
88
Acknowledged and Accepted:
ASSOCIATES NATIONAL
BANK (DELAWARE),
as Servicer
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Senior Vice President
Acknowledged and Accepted:
ASSOCIATES CREDIT CARD
RECEIVABLES CORP.,
as Transferor
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Senior Vice President
[Signature Page to Amended and Restated Master Indenture]
89
STATE OF NEW YORK )
) ss.
COUNTY OF BRONX )
BEFORE ME, the undersigned authority, a Notary Public in and for said
County and State, on this day personally appeared Xxxxxxxxx Xxxxx, Assistant
Treasurer, known to me to be the person and officer whose name is subscribed to
the foregoing instrument and acknowledged to me that the same was the act of the
said New York banking corporation and that she/he executed the same as the
corporation for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 23 day of May, 2000.
/s/ XXXXX XXXX
-----------------------------------
Notary Public
[Seal]
My commission expires:
XXXXX XXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01BA6031253
QUALIFIED IN BRONX COUNTY
COMMISSION EXPIRES 09/27/2001
90
STATE OF DELAWARE )
) ss.
COUNTY OF NEW CASTLE )
--------------------
BEFORE ME, the undersigned authority, a Notary Public in and for said
County and State, on this day personally appeared XXXXXXXX X. XXXXXXX known to
me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said Delaware
statutory business trust and that she/he executed the same as the corporation
for the purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 22 day of MAY, 2000.
/s/ XXXXXXX X. XXXXXX
-----------------------------------
Notary Public
[Seal]
My commission expires:
XXXXXXX X. XXXXXX
NOTARY PUBLIC
STATE OF DELAWARE
My Commission Expires November 21, 2001
----------------------------------------
