EXHIBIT 4.1
===============================================================================
INDENTURE
dated as of [ ], [ ]
between
CITIBANK CREDIT CARD ISSUANCE TRUST,
as Issuer,
and
BANKERS TRUST COMPANY,
as Trustee
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions......................................................3
SECTION 102. Compliance Certificates and Opinions............................26
SECTION 103. Form of Documents Delivered to Trustee..........................26
SECTION 104. Acts of Noteholders.............................................27
SECTION 105. Notices, etc., to Trustee and Issuer....... ....................28
SECTION 106. Notices to Noteholders; Waiver..................................29
SECTION 107. Conflict with Trust Indenture Act...............................29
SECTION 108. Effect of Headings and Table of Contents........................30
SECTION 109. Successors and Assigns..........................................30
SECTION 110. Separability Clause.............................................30
SECTION 111. Benefits of Indenture...........................................30
SECTION 112. Governing Law...................................................30
SECTION 113. Counterparts....................................................30
ARTICLE II
Note Forms
SECTION 201. Forms Generally................................................31
SECTION 202. Forms of Notes.................................................31
SECTION 203. Form of Trustee's Certificate of Authentication................31
SECTION 204. Notes Issuable in the Form of a Global Note....................32
-i-
Page
ARTICLE III
The Notes
SECTION 301. General Title; General Limitations; Issuable in
Series; Terms of Particular Series, Class or
Tranches......................................................34
SECTION 302. Denominations.................................................38
SECTION 303. Execution, Authentication and Delivery and Dating.............39
SECTION 304. Temporary Notes...............................................40
SECTION 305. Registration, Transfer and Exchange...........................40
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes...................42
SECTION 307. Payment of Interest; Interest Rights Preserved................42
SECTION 308. Persons Deemed Owners.........................................43
SECTION 309. Cancelation...................................................43
SECTION 310. Computation of Interest.......................................43
SECTION 311. New Issuances of Notes........................................43
SECTION 312. Specification of Required Subordinated Amount
and other Terms with Respect to each Tranche.................48
SECTION 313. Required Subordinated Amount Conditions to
Issuance of a Tranche of a Senior Class of a
Multiple Issuance Series......................................48
ARTICLE IV
Accounts and Investments
SECTION 401. Collections...................................................51
SECTION 402. Accounts......................................................51
-ii-
SECTION 403. Investment of Funds in the Accounts...........................52
SECTION 404. Excess Funds in the Interest Funding
sub-Accounts or Principal Funding sub-Accounts................54
ARTICLE V
Allocations, Deposits and Payments
SECTION 501. Allocations of Finance Charge Collections.....................55
SECTION 502. Allocations of Principal Collections..........................55
SECTION 503. Targeted Deposits of Furnace Charge Collections
and Principal Collections to the Interest Funding
Account.......................................................56
SECTION 504. Payments Received from Derivative
Counterparties for Interest; Other Deposits to the
Interest Funding Account......................................58
SECTION 505. Allocation of Deposits to Interest Funding sub-
Accounts......................................................59
SECTION 506. Deposit of Principal Funding sub-Account
Earnings in Interest Funding sub-Accounts;
Principal Funding sub-Account Earnings
Shortfall; Payments Received from Derivative
Counterparties for Interest...................................59
SECTION 507. Withdrawals from Interest Funding Account.....................61
SECTION 508. Targeted Deposits of Principal Collections to the
Principal Funding Accou.......................................62
SECTION 509. Payments Received from Derivative
Counterparties for Principal; Other Deposits to
Principal Funding Accounts....................................65
SECTION 510. Allocation to Principal Funding sub-Accounts..................65
SECTION 511. Withdrawals from Principal Funding Account....................66
SECTION 512. Limit on Reallocations of Principal Collections
-iii-
Page
Taken to Benefit Senior Classes of Single
Issuance Series...............................................68
SECTION 513. Limit on Reallocations of Principal Collections
Taken to Benefit Senior Classes in Multiple
Issuance Series...............................................69
SECTION 514. Limit on Reallocations of Principal Collections
Given to Benefit Senior Classes in Multiple
Issuance Series...............................................72
SECTION 515. Limit on Repayments of Subordinated Classes of
Single Issuance Series........................................73
SECTION 516. Limit on Repayments of Subordinated Classes of
Multiple Issuance Series......................................74
SECTION 517. Targeted Deposits to the Class C Reserve Account..............76
SECTION 518. Withdrawals from the Class C Reserve Account..................77
SECTION 519. Reinvestment in the Collateral Certificate....................77
SECTION 520. Final Payment.................................................78
SECTION 521. Timing of Deposits............................................78
SECTION 522. Sale of Credit Card Receivables on Legal Maturity
Date..........................................................78
SECTION 523. Netting of Deposits and Payments..............................79
SECTION 524. Pro Rata Payments within a Tranche............................79
ARTICLE VI
Satisfaction and Discharge
SECTION 601. Satisfaction and Discharge of Indenture.......................79
SECTION 602. Application of Trust Money....................................80
SECTION 603. Cancelation of Notes Held by the Issuer or the
Banks.........................................................80
-iv-
Page
ARTICLE VII
Remedies
SECTION 701. Events of Default.............................................81
SECTION 702. Acceleration of Maturity; Rescission and
Annulment.....................................................82
SECTION 703. Collection of Indebtedness and Suits for
Enforcement by Trustee........................................84
SECTION 704. Trustee May File Proofs of Claim..............................85
SECTION 705. Trustee May Enforce Claims Without Possession
of Notes......................................................86
SECTION 706. Application of Money Collected................................86
SECTION 707. Trustee May Elect to Hold the Collateral
Certificate...................................................87
SECTION 708. Sale of Credit Card Receivables for Accelerated
Class C Notes.................................................87
SECTION 709. Noteholders Have the Right to Direct the Time,
Method and Place of Conducting Any Proceeding
for Any Remedy Available to the Trustee.......................88
SECTION 710. Limitation on Suits...........................................89
SECTION 711. Unconditional Right of Noteholders to Receive
Principal and Interest; Limited Recourse......................89
SECTION 712. Restoration of Rights and Remedies............................90
SECTION 713. Rights and Remedies Cumulative................................90
SECTION 714. Delay or Omission Not Waiver..................................90
SECTION 715. Control by Noteholders........................................90
SECTION 716. Waiver of Past Defaults.......................................91
SECTION 717. Undertaking for Costs.........................................91
SECTION 718. Waiver of Stay or Extension Laws..............................92
ARTICLE VIII
-v-
Page
The Trustee
SECTION 801. Certain Duties and Responsibilities...........................92
SECTION 802. Notice of Defaults............................................94
SECTION 803. Certain Rights of Trustee.....................................94
SECTION 804. Not Responsible for Recitals or Issuance of Notes.............95
SECTION 805. May Hold Notes................................................96
SECTION 806. Money Held in Trust...........................................96
SECTION 807. Compensation and Reimbursement, Limit on
Compensation, Reimbursement and Indemnity.....................96
SECTION 808. Disqualification; Conflicting Interests.......................97
SECTION 809. Corporate Trustee Required; Eligibility.......................97
SECTION 810. Resignation and Removal; Appointment of
Successor.....................................................98
SECTION 811. Acceptance of Appointment by Successor........................99
SECTION 812. Merger, Conversion, Consolidation or Succession
to Business..................................................100
SECTION 813. Preferential Collection of Claims Against Issuer.............101
SECTION 814. Appointment of Authenticating Agent..........................101
ARTICLE IX
Noteholders' Meetings, Lists, Reports by Trustee,
Issuer and Managing Beneficiary
SECTION 901. Issuer To Furnish Trustee Names and Addresses
of Noteholders...............................................103
SECTION 902. Preservation of Information; Communications to
Noteholders..................................................103
SECTION 903. Reports by Trustee...........................................105
SECTION 904. Meetings of Noteholders; Amendments and
-vi-
Page
Waivers......................................................106
SECTION 905. Reports by Issuer............................................107
SECTION 906. Accounting and Directions by the Trustee.....................108
SECTION 907. Reports by Trustee...........................................108
SECTION 908. Issuer's Report..............................................108
SECTION 909. Payment Request to Master Trust..............................108
SECTION 910. Monthly Computation Statement................................109
ARTICLE X
Supplemental Indentures; Amendments to the Pooling and
Servicing Agreement and Amendments to the Trust Agreement
SECTION 1001. Supplemental Indentures Without Consent of
Noteholders..................................................109
SECTION 1002. Supplemental Indentures with Consent of
Noteholders..................................................111
SECTION 1003. Execution of Supplemental Indentures.........................112
SECTION 1004. Effect of Supplemental Indentures............................113
SECTION 1005. Conformity with Trust Indenture Act..........................113
SECTION 1006. Reference in Notes to Supplemental Indentures................113
SECTION 1007. Amendments to the Pooling and Servicing
Agreement Without Consent....................................113
SECTION 1008. Amendments to the Pooling and Servicing
Agreement With Consent.......................................113
SECTION 1009. Amendments to the Trust Agreement Without
Consent......................................................114
SECTION 1010. Amendments to the Trust Agreement With Consent...............115
SECTION 1011. Tax .........................................................115
SECTION 1012. Notice.......................................................115
-vii-
Page
ARTICLE XI
Representations, Warranties and Covenants of Issuer
SECTION 1101. Payment of Principal and Interest............................116
SECTION 1102. Maintenance of Office or Agency..............................116
SECTION 1103. Money for Note Payments to be Held in Trust..................116
SECTION 1104. Statement as to Compliance...................................118
SECTION 1105. Legal Existence..............................................119
SECTION 1106. Further Instruments and Acts.................................119
SECTION 1107. Compliance with Laws.........................................119
SECTION 1108. Notice of Events of Default..................................119
SECTION 1109. Certain Negative Covenants...................................119
SECTION 1110. No Other Business............................................120
SECTION 1111. No Borrowing.................................................120
ARTICLE XII
Early Redemption of Notes
SECTION 1201. Applicability of Article.....................................120
SECTION 1202. Notice.......................................................122
SECTION 1203. Payment of Redemption Price..................................122
ARTICLE XIII
Collateral
SECTION 1301. Recording, Etc...............................................122
SECTION 1302. Trust Indenture Act Requirements.............................123
SECTION 1303. Suits To Protect the Collateral..............................124
-viii-
Page
SECTION 1304. Purchaser Protected..........................................124
SECTION 1305. Powers Exercisable by Receiver or Trustee....................124
SECTION 1306. Determinations Relating to Collateral........................125
SECTION 1307. Release of Collateral........................................125
SECTION 1308. Certain Actions by Trustee...................................126
SECTION 1309. Opinions as to Collateral....................................126
SECTION 1310. Delegation of Duties.........................................127
ARTICLE XIV
Miscellaneous
SECTION 1401. No Petition..................................................127
SECTION 1402. Trust Obligations............................................127
SECTION 1403. Limitations on Liability.....................................128
SECTION 1404. Notes Treated as Debt........................................128
SECTION 1405. Actions Taken by the Issuer..................................128
Exhibit A Form of Payment Request
Exhibit B Form of Monthly Computation Statement
Exhibit C Form of Issuer's Report
-ix-
THIS INDENTURE between CITIBANK CREDIT CARD ISSUANCE
TRUST, a statutory business trust organized under the laws
of the State of Delaware (the "Issuer"), having its
principal office at [address], [State] [ZIP], and BANKERS
TRUST COMPANY, a New York banking corporation ( the
"Trustee"), is made and entered into as of [ ], [ ].
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its notes to be issued in one or more fully
registered or bearer series, classes or tranches.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
To secure the Issuer's obligations under the Notes, the Issuer hereby
grants to (a) the Trustee, for the benefit and security of the Noteholders, (b)
each counterparty to a Derivative Agreement entered into in connection with
issuance of a tranche of Notes that expressly states it is entitled to the
benefit of the Collateral, subject to Section 1303 and (c) the Trustee, a
security interest in all of its right, title and interest, whether now owned or
hereafter acquired, in and to:
(i) the Collateral Certificate;
(ii) the Collection Account;
(iii) the Principal Funding Account;
(iv) the Interest Funding Account;
1
(v) the Class C Reserve Account;
(vi) any Supplemental Account;
(vii) all sub-accounts in the Principal Funding Account, the Interest
Funding Account, the Class C Reserve Account and any Supplemental Account;
(viii) all securities, securities entitlements, investments, money and
other property held in or through the Collection Account, the Principal Funding
Account, the Interest Funding Account, the Class C Reserve Account, any
Supplemental Account or any sub-account thereof;
(ix) all rights, benefits and powers under any Derivative Agreement
relating to any tranche of Notes;
(x) all interest, principal, dividends, payments or distributions of any
nature or type on any of the above;
(xi) all rights of enforcement against any of the representations and
warranties made by the Beneficiaries pursuant to Section 3.02 of the Trust
Agreement; and
(xii) all present and future claims, demands, causes of and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing.
The collateral described above is referred to as the "Collateral". The
security interest in the Collateral is granted to secure the Notes (and, to the
extent specified in the applicable terms document, the obligations under any
applicable Derivative Agreements) equally and ratably without prejudice,
priority or distinction, except as otherwise expressly provided in this
Indenture, or in the Issuer's Certificate or supplemental indenture which
establishes any tranche of Notes, between any Note and any other Note by reason
of difference in time of issuance or otherwise, and to secure (i) the payment of
all amounts due on such Notes (and, to the extent so specified, the obligations
under any Derivative Agreements) in accordance with their terms, (ii) the
payment of all other sums payable under this Indenture and (iii) compliance with
the provisions of this Indenture, all as provided in this Indenture.
2
The Trustee acknowledges the grant of such security interest, and accepts
the Collateral in trust hereunder in accordance with the provisions hereof and
agrees to perform the duties herein to the end that the interests of the
Noteholders may be adequately and effectively protected.
Particular Notes and Derivative Agreements will benefit from the Security
Interest to the extent (and only to the extent) proceeds and distributions on
the Collateral are allocated for their benefit pursuant to this Indenture and
the applicable terms document.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Notes by the
Holders thereof, it is mutually covenanted and agreed as follows, for the equal
and proportionate benefit of all Holders of the Notes or of a series, class or
tranche thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and
other amounts on the Notes and to make payments on Derivative Agreements is
limited by recourse only to the Collateral.
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. For all purposes of this Indenture and of any
supplemental indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
3
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Indenture to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture as originally executed. The words
"herein", "hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(5) "including" and words of similar import will be deemed to be
followed by "without limitation".
"Accounts" means, collectively, the Collection Account, the Interest
Funding Account, the Principal Funding Account, the Class C Reserve Account, and
any Supplemental Account.
"Act", when used with respect to any Noteholder, is defined in Section
104(a).
"action", when used with respect to the Issuer or any Noteholder, is
defined in Section 104(a).
"Adjusted Outstanding Dollar Principal Amount" means at any time with
respect to any tranche of Notes, the Outstanding Dollar Principal Amount of all
Outstanding Notes of such tranche at such time, less any funds on deposit in the
Principal Funding sub-Account for such tranche at such time.
4
"Adverse Effect" means, whenever used in this Indenture with respect to (a)
any tranche of Notes with respect to any action, that such action will at the
time of its occurrence or at any future date result in the occurrence of an
Early Redemption Event or Event of Default, (b) adversely affect the amount of
funds available to be distributed to the Noteholders of any series pursuant to
this Indenture or the timing of such distributions, or (c) adversely affect the
security interest of the Trustee in the Collateral.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"applicable investment category" means with respect to any investment for
an Account relating to a tranche of Class A Notes, Class B Notes or Class C
Notes, the following ratings:
Standard &
Poor's Moody's Fitch Duff & Xxxxxx
Class A Notes A-1+ or AAA P-1 or Aaa F-1+ or AAA D-1+ or AAA
Class B Notes A or higher A2 or higher A or higher A or higher
Class C Notes BBB or higher Baa2 or higher BBB or higher BBB or higher
Notwithstanding the foregoing, if funds on deposit in an Account are for the
benefit of more than one class of Notes, the rating required for any
investment of those funds will be the rating applicable to the most senior
class.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Notes under Section 814.
"Banks" means Citibank (South Dakota) and Citibank (Nevada).
"Beneficiaries" is defined in the Trust Agreement.
5
"Business Day" unless otherwise specified in the terms document for any
tranche of Notes, means any day other than (a) a Saturday or Sunday or (b) any
other day on which national banking associations or state banking institutions
in New York, New York, South Dakota, or Las Vegas, Nevada, or any other state in
which the principal executive offices of any Additional Seller (as defined in
the Pooling and Servicing Agreement) are located, are authorized or obligated by
law, executive order or governmental decree to be closed.
"Citibank" means Citibank, N.A.
"Citibank (Nevada)" means Citibank (Nevada), National Association.
"Citibank (South Dakota)" means Citibank (South Dakota), N.A.
"class" means, with respect to any Note, the class specified in the
applicable terms document. Notes of a single class of a series will rank equally
with respect to payment of principal, but may differ with respect to interest
rates, maturity or other terms.
"Class A Notes" means a Note specified in the applicable terms document as
belonging to Class A.
"Class A Required Subordinated Amount" means, with respect to any tranche
of Class A Notes, the Required Subordinated Amount of Class B Notes or Class C
Notes, as the case may be.
"Class B Notes" means a Note specified in the applicable terms document as
belonging to Class B.
"Class B Required Subordinated Amount" means, with respect to any tranche
of Class B Notes, the Required Subordinated Amount of Class C Notes.
"Class C Notes" means a Note specified in the applicable terms document as
belonging to Class C.
"Class C Reserve Account" means the trust account designated as such and
established pursuant to Section 402(a).
6
"Collateral" is defined in the Granting Clause.
"Collateral Certificate" means the Series [ ]-00 Certificate, issued
pursuant to the Pooling and Servicing Agreement and the Series [ ]-00
Supplement.
"Collection Account" is defined in Section 402(a).
"Collections" is defined in Section 401.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Controlled Amortization Amount" means, with respect to any tranche of
Notes, the amount specified in the applicable terms document for computing the
deposits targeted by Section 508(b).
"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business will
be principally administered, which office at the date hereof is located at 0
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency
Services, except that with respect to the presentation of Notes to the Trustee
for payment or for registration of transfer and exchange, such term means the
office or the agency of the Trustee in said city at which at any particular time
its corporate agency business will be conducted, which office at the date hereof
is located at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Depositary" means, unless otherwise specified by the Issuer pursuant to
either Section 204 or 301, with respect to Notes of any tranche issuable or
issued as a Global Note, The Depository Trust Company, New York, New York, or
any successor thereto registered as a clearing agency under the Securities
Exchange Act, or other applicable statute or regulation.
"Derivative Agreement" means any currency, interest rate or other swap,
cap, collar, guaranteed investment contract or other derivative agreement.
7
"Derivative Counterparty" means any party to any Derivative Agreement other
than the Issuer or the Trustee.
"Discount Note" means a Note that provides for an amount less than the
stated principal amount thereof to be due and payable upon the occurrence of an
Early Redemption Event or other optional or mandatory redemption or the
occurrence of an Event of Default and the acceleration of such Note, in each
case before the Expected Principal Payment Date of the applicable Notes.
"Dollar" means (a) United States dollars, or (b) denominated in United
States dollars.
"Due Period" is defined in the Pooling and Servicing Agreement.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co., or any successor
thereto.
"Early Redemption Event" is defined in Section 1201.
"Effective Date" means the date on which this Indenture is executed and
delivered by the parties hereto.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee for
funds deposited in such account, so long as any of the securities of such
depository institution will have a credit rating from each Rating Agency in one
of its generic credit rating categories which signifies investment grade.
"Eligible Institution" means a depository institution organized under the
laws of the United States of America or any one of the states thereof, including
the District of Columbia (or any domestic branch of a foreign bank), which at
all times has (a)(i) a long-term unsecured debt rating of A2 or better by
Moody's and (ii) a certificate of deposit rating of P-1 by Moody's and (b)(i) in
the case of the Collection Account, if such depository institution is an
Affiliate of Citibank, a certificate of deposit rating of A-1 or better by
Standard & Poor's or (ii) for any other depository institution (or for any
Affiliate of Citigroup Inc., in the case of any Account other
8
than the Collection Account), either (x) a long-term unsecured debt rating of
AAA by Standard & Poor's or (y) a certificate of deposit rating of A-1+ by
Standard & Poor's. If so qualified, the Trustee or the Managing Beneficiary may
be considered an Eligible Institution for the purposes of this definition.
"Eligible Investments" means book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
(having original maturities of no more than 365 days) of depository
institutions or trust companies incorporated under the laws of the
United States of America or any state thereof (or domestic branches of
foreign banks) and subject to supervision and examination by federal
or state banking or depository institution authorities; provided that
at the time of the Issuer's investment or contractual commitment to
invest therein, the short-term debt rating of such depository
institution or trust company will be in the applicable investment
category of each Rating Agency;
(c) commercial paper (having remaining maturities of no more than
30 days) having, at the time of the Issuer's investment or contractual
commitment to invest therein, a rating from each Rating Agency in its
applicable investment category;
(d) investments in money market funds rated in the applicable
investment category by each Rating Agency or otherwise approved in
writing by each Rating Agency;
(e) demand deposits, time deposits and certificates of deposit
which are fully insured by the FDIC;
(f) notes or bankers' acceptances (having original maturities of
no more than 365 days) issued by any depository institution or trust
company referred to in (b) above;
(g) time deposits (having maturities of no more than 30 days),
other than as
9
referred to in clause (e) above, with a Person the commercial
paper of which has a credit rating from each Rating Agency in its
applicable investment category or notes which are payable on demand
issued by Citibank; provided that such notes will constitute Eligible
Investments only for so long as the commercial paper of Citigroup
Inc., has a credit rating from each Rating Agency in its applicable
investment category; or
(h) any other investments approved in writing by each Rating
Agency.
The Issuer may, but is not required to, purchase Eligible Investments from
a registered broker-dealer which is an Affiliate of the Trustee, Citibank (South
Dakota), Citibank (Nevada) and/or Citigroup Inc.
"Entity" means any Person other than an individual or government (including
any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time.
"Event of Default" is defined in Section 701.
"Excluded Master Trust Series" means any series of Investor Certificates
under the Pooling and Servicing Agreement which is by its terms an "excluded
series".
"Expected Principal Payment Date" means, with respect to any tranche of
Notes, the date specified as such in the applicable terms document.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code, as
amended from time to time.
"Finance Charge Collections" means the amount of Investor Finance Charge
Collections (as defined in the Series [ ]-00 Supplement) which are payable to
the Issuer pursuant to Section 4.02 (a)(iii) of the Series [ ]-00 Supplement,
together with all amounts referred to in Section 404.
10
"Fitch" means Fitch IBCA, Inc., or any successor thereto.
"Foreign currency" means (a) a currency other than Dollars, or (b)
denominated in a currency other than Dollars.
"Global Note" means with respect to any tranche of Notes, a Note which is
executed by the Issuer and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
this Indenture and a supplemental indenture, if any, or Issuer's Certificate and
pursuant to an Issuer Request, which will be registered in the name of the
Depositary or its nominee and which will represent, and will be denominated in
an amount equal to the aggregate stated principal amount of, all of the
Outstanding Notes of such tranche or any portion thereof (or in the case of
Discount Notes, the aggregate stated principal amount at the Expected Principal
Payment Date of such Notes), in either case having the same terms, including the
same original issue date, date or dates on which principal is due, and interest
rate or method of determining interest.
"group" means any one or more series of Notes which are specified as
belonging to a common group in the applicable terms document.
"Holder", when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and will include the terms of particular series, classes or
tranches of Notes created as contemplated by Section 301.
"Independent", when used with respect to any specified Person, means such a
Person who (a) does not have any direct financial interest or any material
indirect financial interest in the Issuer or in any other obligor upon the Notes
or in any Affiliate of the Issuer or of such other obligor, and (b) is not
connected with the Issuer or such other obligor or any Affiliate of the Issuer
or of such other obligor, as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions. Whenever it
is herein provided that any Independent Person's opinion or certificate will be
furnished to the Trustee, such Person will be appointed by an Issuer Order and
approved by the Trustee in the exercise of reasonable care, and such opinion or
certificate will state that the signer has read this definition and that the
signer is
11
Independent within the meaning hereof.
"Initial Dollar Principal Amount" means (a) unless otherwise specified in
the applicable terms document, with respect to tranches of Dollar
Interest-bearing Notes, the aggregate initial principal amount of the
Outstanding Notes of such tranche, and (b) with respect to tranches of Discount
Notes and foreign currency Notes, the amount specified in the applicable terms
document as the Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at a stated or
computed rate on the stated principal amount thereof. To the extent a Note
constitutes both an Interest-bearing Note and a Discount Note, the provisions of
this Indenture relating to both Interest-bearing Notes and a Discount Note will
apply.
"Interest Deposit Date" means the respective dates specified for deposits
into the Interest Funding sub-Accounts in Section 503.
"Interest Funding Account" means the trust account designated as such and
established pursuant to Section 402(a).
"Interest Payment Date" means, with respect to any tranche of Notes, the
Scheduled Interest Payment Date or if such day is not a Business Day, the next
following Business Day.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Invested Amount" means (a) with respect to the Collateral Certificate, the
Series [ ]-00 Invested Amount as defined in the Series [ ]-00 Supplement, and
(b) with respect to any other Investor Certificate, as defined in the supplement
to the Pooling and Servicing Agreement creating such Investor Certificate.
"Investor Certificate" is defined in the Pooling and Servicing Agreement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
12
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Request", "Issuer Order" and "Issuer Consent" mean, respectively, a
written request, order or consent signed in the name of the Issuer by its
Managing Beneficiary or Issuer Trustee and delivered to the Trustee.
"Issuer's Certificate" means a certificate signed by the Managing
Beneficiary or the Issuer Trustee and delivered to the Trustee. Wherever this
Indenture requires that an Issuer's Certificate be signed also by an accountant
or other expert, such accountant or other expert (except as otherwise expressly
provided in this Indenture) may be in the employ of the Managing Beneficiary.
"Issuer's Report" means a request substantially in the form of Exhibit C.
"Issuer Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that for Federal and Delaware income and franchise tax
purposes (a) the Issuer will not be an association (or publicly traded
partnership) taxable as a corporation following such action, (b) where such
action is the issuance of a series, class or tranche of Notes, following such
action such series, class or tranche of Notes will be properly characterized as
debt, (c) such action will not adversely affect the characterization of any
Outstanding series, class or tranche of Notes as debt and (d) such action will
not cause a taxable event to Holders of any such Notes.
"Issuer Trustee" means [ ], in its capacity as trustee of the Issuer, and
each of its successors and assigns.
"Legal Maturity Date", with respect to any Note, means the date specified
in such Note as the fixed date on which the principal of such Note is due and
payable.
"Managing Beneficiary" is defined in the Trust Agreement.
"Master Trust" means Citibank Credit Card Master Trust I, established
pursuant to the Pooling and Servicing Agreement.
"Master Trust Tax Opinion" means, with respect to any action, an Opinion of
Counsel to
13
the effect that, for Federal and South Dakota (and any other state where
substantial servicing activities in respect of credit card accounts are
conducted by any Additional Seller, as defined in the Pooling and Servicing
Agreement, or the Banks, if there is a substantial change from present servicing
activities) income and franchise tax purposes, (a) such action will not
adversely affect the characterization as debt of the Investor Certificates, as
defined in the Pooling and Servicing Agreement, of any outstanding series or
class under the Master Trust, other than the Collateral Certificate, (b) such
action will not cause a taxable event to any Investor Certificateholder and (c)
following such action the Master Trust will not be treated as an association (or
publicly traded partnership) taxable as a corporation.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"Monthly Computation Statement" means a request substantially in the form
of Exhibit B.
"Monthly Interest Date" means, with respect to any tranche of Notes:
(a) for any month in which a Scheduled Interest Payment Date
occurs, the corresponding Interest Payment Date, and
(b) for any month in which no Scheduled Interest Payment Date
occurs, the date in such month corresponding numerically to the next
Scheduled Interest Payment Date for such tranches of Notes; provided,
however, that
(i) if there is no numerically corresponding day in such
month, then the Monthly Interest Date will be the last Business
Day of such month, and
(ii) if such numerically corresponding day is not a Business
Day, the Monthly Interest Date will be the next following
Business Day (unless such Business Day would fall in the
following month in which case the Monthly Interest Date will be
the last Business Day of such earlier month).
"monthly period" is defined in Section 506.
14
"Monthly Principal Date" means with respect to any tranche of Notes:
(a) for any month in which the Expected Principal Payment Date
occurs, the Expected Principal Payment Date (or if such day is not a
Business Day, the next following Business Day), and
(b) for any month in which no Expected Principal Payment Date
occurs, the date in such month corresponding numerically to the
Expected Principal Payment Date for such tranche of Notes; provided,
however, that
(i) if there is no numerically corresponding day in such
month, then the Monthly Principal Date will be the last Business
Day of such month, and
(ii) if such numerically corresponding day is not a Business
Day, the Monthly Principal Date will be the next following
Business Day (unless such Business Day would fall in the
following month in which case the Monthly Principal Date will be
the last Business Day of such earlier month).
"Multiple Issuance Series" means any series of Notes other than a Single
Issuance Series.
"Nominal Liquidation Amount" means, with respect to any tranche of Notes,
an amount determined as follows:
(a) As of the date of issuance of such tranche of Notes, the Nominal
Liquidation Amount will be the Initial Dollar Principal Amount of such
tranche of Notes.
(b) As of each subsequent date of determination, the Nominal
Liquidation Amount will be the sum of:
(i) the Nominal Liquidation Amount of such tranche immediately
after the prior date of determination, or in the case of the first
date of determination, immediately after issuance;
plus
15
(ii) with respect to any tranche of Discount Notes, the amount of
any accretions of interest paid by the Issuer for investment in the
Invested Amount of the Collateral Certificate pursuant to Section
519(a);
plus
(iii) the amount of any prefunding amount released from the
Principal Funding sub-Account of such tranche pursuant to Section
519(b) and paid to the Master Trust investment in the Invested Amount
of the Collateral Certificate;
plus
(iv) the amount of all reimbursements of reductions to the
Invested Amount of the Collateral Certificate made pursuant to Section
5.01(a)(v) of the Series [ ] Supplement or Sections 501(d) and 519(c)
hereof since the prior date of determination, such reduction to be
allocated (A) first, pro rata to each tranche of Class A Notes of each
series based on the Outstanding Dollar Principal Amount thereof (and
reallocated on the same basis, if necessary, until all the Nominal
Liquidation Amount all tranches of Class A Notes have been increased
to the Outstanding Dollar Principal Amount thereof), and (B) second,
pro rata to each tranche of Class B Notes of each series based on the
Outstanding Dollar Principal Amount thereof (and reallocated on the
same basis, if necessary, until the Nominal Liquidation Amount of all
tranches of Class B Notes have been increased to the Outstanding
Dollar Principal Amount thereof), and (C) third, pro rata to each
tranche of Class C Notes of each series based on the Outstanding
Dollar Principal Amount thereof (and reallocated on the same basis, if
necessary, until the Nominal Liquidation Amount of all tranches of
Class C Notes have been increased to the Outstanding Dollar Principal
Amount thereof);
minus
16
(v) the amount of all Principal Collections that are allocated to
the series to which such tranche is a part which are reallocated
pursuant to Section 502(a), such reduction to be allocated (A) first,
pro rata to each tranche of Class C Notes of such series based on the
Outstanding Dollar Principal Amount thereof (and reallocated on the
same basis, if necessary), and (B) second, pro rata to each tranche of
Class B Notes of such series based on the Outstanding Dollar Principal
Amount thereof (and reallocated on the same basis, if necessary);
minus
(vi) the amount of all reductions in the Invested Amount of the
Collateral Certificate resulting from an allocation of Investor
Charge-Offs to Series [ ]-00 pursuant to Section 4.03 of the Series [
]-00 Supplement, such reduction to be allocated (A) first, pro rata to
each tranche of Class C Notes of each series based on the Outstanding
Dollar Principal Amount thereof (and reallocated on the same basis, if
necessary), and (B) second, pro rata to each tranche of Class B Notes
of each series based on the Outstanding Dollar Principal Amount
thereof (and reallocated on the same basis, if necessary), and (C)
third, pro rata to each tranche of Class A Notes of each series based
on the Outstanding Dollar Principal Amount thereof (and reallocated on
the same basis, if necessary, until the Nominal Liquidation Amount of
all tranches of Class A Notes have been reduced to zero);
minus
(vii) the amount on deposit in the applicable Principal Funding
sub- Account for such tranche; and
minus
(viii) the aggregate amount withdrawn from the applicable
Principal Funding sub-Account for such tranche pursuant to Section
511(a), (b) or (c);
provided; however, that (1) the maximum cumulative amount by which the Nominal
Liquidation Amount of any tranche of Notes of a subordinated class may be
reduced pursuant to clause (v) and clause (vi) is equal to the sum of the
highest Outstanding Dollar Principal Amount of such tranche plus the amount of
all reimbursements to the Nominal Liquidation
17
Amount of such tranche which are counted toward the Required Subordinated Amount
with respect to a senior class of Notes issued on or after the date of such
reimbursement, (2) the Nominal Liquidation Amount of a tranche of Notes may
never be less than zero, and (3) the Nominal Liquidation Amount of any tranche
of Notes may never be greater than the Adjusted Outstanding Dollar Principal
Amount of such tranche.
It is the intention of the Issuer that the sum of the Nominal Liquidation
Amounts of all tranches of Notes will at all times be equal to the Invested
Amount of the Collateral Certificate.
The Nominal Liquidation Amount for a series of Notes will be the sum of the
Nominal Liquidation Amounts of all of the tranches of Notes of that series.
"non-Performing", with respect to a Derivative Agreement, means not
Performing.
"Note" or "Notes" means any note or notes, of any series, class or tranche
authenticated and delivered from time to time under this Indenture.
"Note Register" is defined in Section 305.
"Note Registrar" means the Person who keeps the Note Register specified in
Section 305.
"Noteholder" means a Person in whose name a Note is registered in the Note
Register.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of or of counsel
to the Issuer, the Managing Beneficiary or any of their Affiliates.
"Outstanding", when used with respect to a Note or with respect to Notes of
any group, series, class or tranche means, as of the date of determination, all
such Notes theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancelation, or canceled by the Issuer, the Banks or any
Affiliate thereof pursuant to Section 309;
18
(b) any Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
in trust for the Holders of such Notes; provided that, if such Notes are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) any Notes whose Nominal Liquidation Amount is zero on its Legal
Maturity Date (or later, after giving effect to all sales of credit card
receivables, payments, allocations and distributions to be made on that
day);
(d) any Note with an Outstanding Dollar Principal Amount or Stated
Principal Amount of zero; and
(e) any such Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture, or which
will have been paid pursuant to the terms of SECTION 306 (except with
respect to any such Note as to which proof satisfactory to the Trustee is
presented that such Note is held by a person in whose hands such Note is a
legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of such
Notes Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, and for purposes of Section 904, Notes
beneficially owned by the Issuer, the Banks or any other obligor upon the Notes
or any Affiliate of the Issuer, the Banks or such other obligor will be
disregarded and deemed not to be Outstanding. In determining whether the Trustee
will be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to be
owned by the Issuer or any other obligor upon the Notes or any Affiliate of the
Issuer or such other obligor will be so disregarded. Notes so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee creates
to the satisfaction of the Trustee the pledgee's right to act as owner with
respect to such Notes and that the pledgee is not the Issuer or any other
obligor upon the Notes or any Affiliate of the Issuer or such other obligor.
"Outstanding Dollar Principal Amount" means at any time,
19
(a) with respect to any tranche of Dollar Interest-bearing Notes, the
aggregate Initial Dollar Principal Amount of the Outstanding Notes of such
tranche at such time, less the Dollar amount of any amounts withdrawn from
the Principal Funding sub- Account of such tranche of Notes for payment to
the holders of such tranche pursuant to Section 511, and
(b) with respect to any tranche of Discount Notes and any tranche of
foreign currency Notes, an amount calculated by reference to the applicable
formula set forth in the applicable terms document, taking into account the
amount and timing of payments of principal made.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer.
"Payment Date" means, with respect to any tranche of Notes, the applicable
Principal Payment Date or Interest Payment Date.
"Payment Request" means a request substantially in the form of Exhibit A.
"Performing" means, with respect to any Derivative Agreement, no payment
default or repudiation of performance by a Derivative Counterparty has occurred,
and such Derivative Agreement has not been terminated.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means with respect to any tranche of Notes issued
hereunder the city or political subdivision so designated with respect to such
tranche of Notes in accordance with the provisions of Section 301.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of May 29, 1991, among Citibank (South Dakota) as Seller and
Servicer, Citibank (Nevada)
20
as Seller, and Bankers Trust Company as Trustee, as amended, restated and
supplemented from time to time.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a lost, destroyed or
stolen Note will be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
"Principal Collections" means the amount of Available Investor Principal
Collections (as defined in the Series [ ]-00 Supplement) which are payable to
the Issuer pursuant to Section 4.02 (b)(i) or Section 4.02(c)(i) of the Series [
]-00 Supplement.
"Principal Deposit Date" means the respective dates specified for deposits
into the Principal Funding sub-Accounts in Section 508.
"Principal Funding Account" means the trust account designated as such and
established pursuant to Section 402(a).
"Principal Funding sub-Account Earnings" means, with respect to any
Principal Funding sub-Account for any period, the net amount of income and other
earnings on the amounts on deposit in the Principal Funding Account earned by
the funds on deposit in such Principal Funding sub-Account for such period.
"Principal Funding sub-Account Earnings Shortfall" means, for any period,
(a) the Principal Funding sub-Account Earnings Target for such period
minus
(b) the Principal Funding sub-Account Earnings for such period.
"Principal Funding sub-Account Earnings Target" means, for any period, with
respect to any amount on deposit in a Principal Funding sub-Account, the Dollar
amount of interest that would have accrued on such deposit if it had borne
interest at the rate of accrual (and/or accretion) of the related tranche of
Notes. This calculation will be made giving effect to any net
21
payments or receipts expected to be received or paid pursuant to Performing
Derivative Agreements.
"Principal Payment Date" means, with respect to any tranche of Notes, the
Expected Principal Payment Date (or if such day is not a Business Day, the next
following Business Day), or upon the acceleration of a tranche of Notes
following an Event of Default or upon the occurrence of an Early Redemption
Event, or other optional or mandatory redemption of a tranche of Notes, each
Monthly Principal Date.
"Rating Agency" means, with respect to any Outstanding series, class or
tranche of Notes, each statistical rating agency selected by the Issuer to rate
such Notes.
"Ratings Effect" means a reduction, qualification or withdrawal of any then
current rating of the Notes.
"Record Date" for the interest or principal payable on any Note on any
applicable Payment Date means the date specified in such Note as the Record
Date. Unless otherwise specified in the applicable terms document, the Record
Date for any Note will be the last day of the month before the related Payment
Date.
"Required Subordinated Amount" means, with respect to any tranche of a
senior class of Notes, a Dollar amount of a subordinated class of the same
series, as specified in the applicable terms document for such tranche of the
senior class, or as changed from time to time pursuant to Section 312(b).
"Required Surplus Finance Charge Amount" means, with respect to any Due
Period, an amount equal to one twelfth of the product of (a) the Series [ ]-00
Invested Amount (as defined in the Series [ ]-00 Supplement) of the Collateral
Certificate as of the last day of the immediately preceding Due Period, and (b)
a decimal number to be set by the Issuer, which will initially equal zero (and
which will never be less than zero); provided, however, that for purposes of the
definition of "Adverse Effect", such decimal number will at all times be deemed
to be the decimal number as set by the Issuer plus one-hundredth (0.01). The
Issuer may, from time to time, change the decimal number to be set for purposes
of clause (b) upon notice to the Trustee and each Rating Agency, and, if such
decimal number is to be changed, upon delivery by the Issuer to the Trustee of
an Issuer's Certificate of a Vice President or more senior officer to
22
the effect that the Issuer reasonably believes that such increase will not have
an Adverse Effect and is not reasonably expected to have an Adverse Effect at
any time in the future.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer or trust officer, the controller and any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Scheduled Interest Payment Date" means, with respect to any tranche of
Notes, the scheduled due date of any payment of interest on such Notes, as
specified in such Notes, without regard to whether or not such day is a Business
Day.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means the security interest granted pursuant to the
Granting Clause.
"Segregated Sellers' Interest" means, on any date, a portion of the
Sellers' Interest equal to the aggregate amount on deposit in the Principal
Funding Account.
"Sellers" means Citibank (Nevada) and Citibank (South Dakota) in their
capacities as Sellers under the Pooling and Servicing Agreement and any
Additional Sellers as defined in the Pooling and Servicing Agreement.
"senior class" means (a) with respect to Class B Notes of a series, Class A
Notes of that series and (b) with respect to Class C Notes of a series, Class A
Notes or Class B Notes of that series.
"series" means, with respect to any Note, the series specified in the
applicable terms document.
23
"Series [ ]-00 Supplement" means the Series [ ]-00 Supplement to the
Pooling and Servicing Agreement, dated as of [ ], [ ], that establishes the
Collateral Certificate.
"Single Issuance Series" means any series of Notes that by the terms of the
applicable terms document does not permit the issuance of more than one tranche
of Notes in each class of Notes in such series.
"Spot Exchange Rate" means, on any day, (a) with respect to any currency
other than Dollars, the spot rate at which Dollars are offered on such day by
Citibank in London (or if it is not a Business Day in London, by Citibank in New
York) for such currency at approximately 11:00 a.m. (London (or New York) time),
and (b) with respect to Dollars in relation to any specified currency other than
Dollars, the spot rate at which such specified currency is offered on such day
by Citibank in London (or if it is not a Business Day in London, by a major
commercial bank in a money center for such currency) for Dollars at
approximately 11:00 a.m. (London (or local) time).
"Standard & Poor's" means Standard & Poor's Ratings Services or any
successor thereto.
"sub-Accounts" means each of the sub-Accounts referred to in Section
402(a).
"subordinated class" means (a) with respect to Class A Notes of a series,
Class B Notes or Class C Notes of that series, and (b) with respect to Class B
Notes of a series, Class C Notes of that series.
"Supplemental Account" means the trust account or accounts designated as
such and established pursuant to Section 402(a).
"Supplemental indenture" means an indenture supplemental to this Indenture
executed and delivered pursuant to Article X.
"Surplus Finance Charge Collections" means with respect to any Due Period,
the amount of
(a) (i) Finance Charge Collections received pursuant to Section
4.02(a)(iii) of the
24
Series [ ]-00 Supplement, and (ii) net earnings and other gain on amounts on
deposit in the Accounts (other than the Principal Funding Account) received
pursuant to Section 403(e),
minus
(b) the sum of the amounts, without duplication, determined pursuant
to Section 501(a) or (b) for such Due Period.
"terms document" means, with respect to any series, class or tranche
of Notes, the Issuer's Certificate or supplemental indenture that establishes
such series, class or tranche.
"tranche" means, with respect to any class of Notes, Notes of such
class which have identical terms, conditions and tranche designation.
"Trust Agreement" means the Trust Agreement, dated as of [ ], [ ],
among Citibank (Nevada) and Citibank (South Dakota), as Beneficiaries, and [NAME
OF ISSUER TRUSTEE], as Trustee, as such agreement may be amended, restated or
supplemented from time to time.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this Indenture was executed except as provided in Section 1005.
"Trustee" means the Person named as the Trustee in the first paragraph
of this Indenture until a successor Trustee will have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" means and
includes each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the Notes of any
series, class or tranche means the Trustee with respect to Notes of that series,
class or tranche.
"Vice President" when used with respect to the Issuer or the Trustee
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president", including an assistant
vice president.
"Weighted Average Interest Rates" means, with respect to the Notes,
the weighted
25
average interest rates applicable to such Notes (after converting the effective
interest rates of Discount Notes to their accrual interest rate equivalents).
This calculation will be made giving effect to any net payments or receipts
expected to be received pursuant to Performing Derivative Agreements.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Issuer to the Trustee to take any action under any provision of
this Indenture, the Issuer will furnish to the Trustee an Issuer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such Counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for the written statement
required by Section 1104) will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that such individual has made such examination or
investigation as is necessary to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
26
one or more specified Persons, one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to the other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Issuer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by the
Issuer stating that the information with respect to such factual matters is in
the possession of the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Noteholders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action (collectively, "action")
provided by this Indenture to be given or taken by Noteholders of any series,
class or tranche may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action will become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent will be sufficient for
any purpose of this Indenture and (subject to Section 801) conclusive in favor
of the Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness to such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the
27
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or a member of a
partnership, on behalf of such corporation or partnership, such certificate or
affidavit will also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Notes will be proved by the Note Register.
(d) If the Issuer will solicit from the Holders any action, the Issuer may,
at its option, by an Issuer's Certificate, fix in advance a record date for the
determination of Holders entitled to give such action, but the Issuer will have
no obligation to do so. If the Issuer does not so fix a record date, such record
date will be the later of 30 days before the first solicitation of such action
or the date of the most recent list of Noteholders furnished to the Trustee
pursuant to Section 901 before such solicitation. Such action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date will be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Notes Outstanding
have authorized or agreed or consented to such action, and for that purpose the
Notes Outstanding will be computed as of the record date; provided that no such
authorization, agreement or consent by the Holders on the record date will be
deemed effective unless it will become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
(e) Any action by the Holder of any Note will bind the Holder of every Note
issued upon the transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done or suffered to be done by the Trustee or the Issuer in
reliance thereon whether or not notation of such action is made upon such Note.
SECTION 105. Notices, etc., to Trustee and Issuer. Any action of
Noteholders or other document
28
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(a) the Trustee by any Noteholder or by the Issuer will be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(b) the Issuer by the Trustee or by any Noteholder will be sufficient
for every purpose hereunder (except as provided in Section 701(c) or, in
the case of a request for repayment, as specified in the Note carrying the
right to repayment) if in writing and mailed, first-class postage prepaid,
to the Issuer addressed to it at the address of its principal office
specified in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Issuer.
SECTION 106. Notices to Noteholders; Waiver. Where this Indenture or any
Note provides for notice to Noteholders of any event, such notice will be
sufficiently given (unless otherwise herein or in such Note expressly provided)
if in writing and mailed, first-class postage prepaid, to each Noteholder
affected by such event, at his address as it appears in the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Noteholder will affect the sufficiency of such
notice with respect to other Noteholders. Where this Indenture or any Note
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver will be the equivalent of such notice. Waivers of notice by
Noteholders will be filed with the Trustee, but such filing will not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or otherwise, it will be impractical to mail notice of
any event to any Noteholder when such notice is required to be given pursuant to
any provision of this Indenture, then any method of notification as will be
satisfactory to the Trustee and the Issuer will be deemed to be a sufficient
giving of such notice.
SECTION 107. Conflict with Trust Indenture Act. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with
29
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act, such
imposed duties or incorporated provision will control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision will be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
will not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer will bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause. In case any provision in this Indenture
or in the Notes will be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in any
Notes, express or implied, will give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Note Registrar, Derivative Counterparties (to the extent specified in the
applicable Derivative Agreement) and the Holders of Notes (or such of them as
may be affected thereby), any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 112. Governing Law. This Indenture will be construed in accordance
with and governed by the laws of the State of New York.
SECTION 113. Counterparts. This Indenture may be executed in any number of
counterparts, each of which so executed will be deemed to be an original, but
all such counterparts will together constitute but one and the same instrument.
30
ARTICLE II
Note Forms
SECTION 201. Forms Generally. The Notes will have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may be
required to comply with applicable laws or regulations or with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
Issuer, as evidenced by the Issuer's execution of such Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The definitive Notes will be printed, lithographed or engraved or produced
by any combination of these methods on steel engraved borders or may be produced
in any other manner, all as determined by the Issuer, as evidenced by the
Issuer's execution of such Notes, subject, with respect to the Notes of any
series, class or tranche, to the rules of any securities exchange on which such
Notes are listed.
SECTION 202. Forms of Notes. Each Note will be in one of the forms approved
from time to time by or pursuant to an Issuer's Certificate, or established in
one or more indentures supplemental hereto. Before the delivery of a Note to the
Trustee for authentication in any form approved by or pursuant to an Issuer's
Certificate, the Issuer will deliver to the Trustee the Issuer's Certificate by
or pursuant to which such form of Note has been approved, which Issuer's
Certificate will have attached thereto a true and correct copy of the form of
Note which has been approved thereby or, if an Issuer's Certificate authorizes a
specific officer or officers of the Managing Beneficiary to approve a form of
Note, a certificate of such officer or officers approving the form of Note
attached thereto. Any form of Note approved by or pursuant to an Issuer's
Certificate must be acceptable as to form to the Trustee, such acceptance to be
evidenced by the Trustee's authentication of Notes in that form or a certificate
signed by a Responsible Officer of the Trustee and delivered to the Issuer.
SECTION 203. Form of Trustee's Certificate of Authentication. The
form of Trustee's Certificate of Authentication for any Note issued pursuant
to this Indenture will be substantially as follows:
31
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series, class or tranche designated
therein referred to in the within-mentioned Indenture.
[INDENTURE TRUSTEE NAME],
as Trustee,
By:________________________
Authorized Signatory
SECTION 204. Notes Issuable in the Form of a Global Note. (a) If the Issuer
will establish pursuant to Sections 202 and 301 that the Notes of a particular
series, class or tranche are to be issued in whole or in part in the form of one
or more Global Notes, then the Issuer will execute and the Trustee or its agent
will, in accordance with Section 303 and the Issuer Request delivered to the
Trustee or its agent thereunder, authenticate and deliver, such Global Note or
Notes, which (i) will represent, and will be denominated in an amount equal to
the aggregate stated principal amount (or in the case of Discount Notes, the
stated principal amount at the Expected Principal Payment Date of such Notes)
of, the Outstanding Notes of such series, class or tranche to be represented by
such Global Note or Notes, or such portion thereof as the Issuer will specify in
an Issuer Request, (ii) will be registered in the name of the Depositary for
such Global Note or Notes or its nominee, (iii) will be delivered by the Trustee
or its agent to the Depositary or pursuant to the Depositary's instruction and
(iv) will bear a legend substantially to the following effect: "Unless and until
it is exchanged in whole or in part for the individual Notes represented hereby,
this Global Note may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of Section
305, and subject to the provisions of paragraph (c) below, unless the terms of a
Global Note expressly permit such Global Note to be exchanged in whole or in
part for individual Notes, a Global Note may be transferred, in whole but not in
part and in the manner provided in Section 305, only to a
32
nominee of the Depositary for such Global Note, or to the Depositary, or a
successor Depositary for such Global Note selected or approved by the Issuer, or
to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Note notifies the Issuer
that it is unwilling or unable to continue as Depositary for such Global Note or
if at any time the Depositary for the Notes for such series, class or tranche
ceases to be a clearing agency registered under the Securities Exchange Act, or
other applicable statute or regulation, the Issuer will appoint a successor
Depositary with respect to such Global Note. If a successor Depositary for such
Global Note is not appointed by the Issuer within 90 days after the Issuer
receives such notice or becomes aware of such ineligibility, the Issuer will
execute, and the Trustee or its agent, upon receipt of an Issuer Request for the
authentication and delivery of individual Notes of such series, class or tranche
in exchange for such Global Note, will authenticate and deliver, individual
Notes of such series, class or tranche of like tenor and terms in an aggregate
stated principal amount equal to the stated principal amount of the Global Note
in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion determine that
the Notes of any series, class or tranche or portion thereof issued or issuable
in the form of one or more Global Notes will no longer be represented by such
Global Note or Notes. In such event the Issuer will execute, and the Trustee,
upon receipt of an Issuer Request for the authentication and delivery of
individual Notes of such series, class or tranche in exchange in whole or in
part for such Global Note, will authenticate and deliver individual Notes of
such series, class or tranche of like tenor and terms in definitive form in an
aggregate principal stated amount equal to the stated principal amount of such
Global Note or Notes representing such series, class or tranche or portion
thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 202 and 301 with
respect to Notes issued or issuable in the form of a Global Note, the Depositary
for such Global Note may surrender such Global Note in exchange in whole or in
part for individual Notes of such series, class or tranche of like tenor and
terms in definitive form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon the Issuer will execute, and the Trustee or its agent will
authenticate and deliver, without service charge, (A) to each Person specified
by such Depositary a new Note or Notes of the same series, class or tranche of
like tenor and terms and of any authorized denomination as requested by such
Person in aggregate stated principal amount equal
33
to and in exchange for such Person's beneficial interest in the Global Note; and
(b) to such Depositary a new Global Note of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the stated
principal amount of the surrendered Global Note and the aggregate stated
principal amount of Notes delivered to the Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs,
the Issuer will execute and the Trustee or its agent will authenticate and
deliver individual Notes in definitive registered form in authorized
denominations. Upon the exchange of the entire stated principal amount of a
Global Note for individual Notes, such Global Note will be canceled by the
Trustee or its agent. Except as provided in the preceding paragraph, Notes
issued in exchange for a Global Note pursuant to this Section will be registered
in such names and in such authorized denominations as the Depositary for such
Global Note, pursuant to instructions from its direct or indirect participants
or otherwise, will instruct the Trustee or the Note Registrar. The Trustee or
the Note Registrar will deliver such Notes to the Persons in whose names such
Notes are so registered.
ARTICLE III
The Notes
SECTION 301. General Title; General Limitations; Issuable in Series; Terms
of Particular Series, Class or Tranches. (a) The aggregate stated principal
amount of Notes which may be authenticated and delivered and Outstanding under
this Indenture is not limited.
(b) The Notes may be issued in one or more series, classes or tranches up
to an aggregate stated principal amount of Notes as from time to time may be
authorized by the Issuer. All Notes of each series, class or tranche under this
Indenture will in all respects be equally and ratably entitled to the benefits
hereof with respect to such series, class or tranche without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Expected Principal Payment Date or Legal Maturity Date of the Notes
of such series, class or tranche, except as specified in the applicable terms
document for such series, class or tranche.
(c) Each Note issued must be assigned to a group of Notes for purposes of
allocations pursuant to Article V. On the date of this Indenture, a single group
of Notes identified as
34
"Group 1" has been established for allocation purposes in Article V. Additional
groups may be established from time to time pursuant to supplemental indentures.
(d) Each Note issued must be part of a series, class and tranche of Notes
for purposes of allocations pursuant to Article V. A series, class or tranche of
Notes is created pursuant to an Issuer's Certificate or a supplemental
indenture.
(e) Each series of Notes may, but need not be, subdivided into multiple
classes. This Indenture provides for up to three classes of Notes: Class A,
Class B and Class C. As specified in Article V, Notes belonging to Class A in
any series are entitled to specified payment priorities over Class B and Class C
Notes in that series. Notes belonging to Class B in any series are entitled to
specified payment priorities over Class C Notes in that series. Class C Notes
have the benefit of the Class C Reserve Account. A supplement to this Indenture
may provide for more or different classes of Notes.
(f) Notes of a single series that belong to separate classes in that series
belong to separate tranches on the basis of the difference in class membership.
(g) Each class of Notes may consist of a single tranche or may be
subdivided into multiple tranches. Notes of a single class of a series will
belong to different tranches if they have different terms and conditions. With
respect to any class of Notes, Notes which have identical terms, conditions and
tranche designation will be deemed to be part of a single tranche.
(h) Each series, class or tranche of Notes will be created either by or
pursuant to an Issuer's Certificate or by or pursuant to a supplemental
indenture. The Notes of each such series, class or tranche may be payable at
such place or places, have such Expected Principal Payment Date or Dates or
Legal Maturity Date or Dates, be issuable at such premium over or discount from
their face value, bear interest at such rate or rates (which may be fixed or
floating), from such date or dates, payable in such installments and on such
dates and at such place or places to the Holders of Notes registered as such on
such Record Dates, or may bear no interest, and have such terms, all as will be
provided for in or pursuant to the applicable terms document. There may also be
established in or pursuant to an Issuer's Certificate or a supplemental
indenture before the issuance of Notes of each such series, class or tranche,
provision for:
(i) the series designation and, if such series will be part of a group
of series for
35
purposes of reallocations of Principal Collections and/or Finance Charge
Collections payments, the manner and extent to which each series in the
group will be subject to reallocations;
(ii) the stated principal amount of the Notes and whether they are
Class A Notes, Class B Notes or Class C Notes or a tranche of any of these
classes;
(iii) the Required Subordinated Amount (if any) for such class or
tranche of Notes;
(iv) the currency or currencies in which the Notes of such series,
class or tranche will be denominated and in which payments of principal of,
and interest on, such Notes will or may be payable;
(v) if the principal of or interest, if any, on the Notes of such
series, class or tranche are to be payable, at the election of the Issuer
or a Holder thereof, in a currency or currencies other than that in which
the Notes are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(vi) if the amount of payments of principal of or interest, if any, on
the Notes of such series, class or tranche may be determined with reference
to an index based on (A) a currency or currencies other than that in which
the Notes are stated to be payable, (B) changes in the price of one or more
other securities or groups or indexes of securities or (C) changes in the
prices of one or more commodities or groups or indexes of commodities, or
any combination of the foregoing, the manner in which such amounts will be
determined;
(vii) the price at which the Notes will be issued;
(viii) the Expected Principal Payment Date and Legal Maturity Date of
the Notes;
(ix) the times at which the Notes may, pursuant to any optional or
mandatory redemption provisions, be redeemed, and the other terms and
provisions of any such redemption provisions;
36
(x) the rate per annum at which such Notes will bear interest, if any,
or the formula or index on which such rate will be determined, including
all relevant definitions, and the date from which interest will accrue;
(xi) the Interest Payment Dates for such Notes;
(xii) if such Notes are to be Discount Notes or foreign currency
Notes, the Initial Dollar Principal Amount of such Notes, and the means for
calculating the Outstanding Dollar Principal Amount of such Notes;
(xiii) whether or not application will be made to list such Notes on
any securities exchange;
(xiv) any Event of Default or Early Redemption Event with respect to
the Notes of such series, class or tranche, if not set forth herein and any
additions, deletions or other changes to the Events of Default or Early
Redemption Events set forth herein that will be applicable to the Notes of
such series, class or tranche (including a provision making any Event of
Default or Early Redemption Event set forth herein inapplicable to the
Notes of that series, class or tranche);
(xv) the appointment by the Trustee of an Authenticating Agent in one
or more places other than the location of the office of the Trustee with
power to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Notes of any one or more series, classes
or tranche in connection with such transactions as will be specified in the
provisions of this Indenture or in or pursuant to the applicable terms
document creating such series, classes or tranche;
(xvi) if the Notes of the series, class or tranche will be issued in
whole or in part in the form of a Global Note or Global Notes, the terms
and conditions, if any, upon which such Global Note or Global Notes may be
exchanged in whole or in part for other individual Notes; and the
Depositary for such Global Note or Global Notes (if other than the
Depositary specified in Section 101);
(xvii) the subordination of the Notes of such series, class or tranche
to any other indebtedness of the Issuer, including without limitation, the
Notes of any other class,
37
series, class or tranche;
(xviii) if the Notes of such series, class or tranche are to have the
benefit of any Derivative Agreement, the terms and provisions of such
agreement;
(xix) the Record Date for any Payment Date of the Notes of such
series, class or tranche, if different from the last day of the month
before the related Payment Date;
(xx) the Controlled Amortization Amount (if any) of such class or
tranche;
(xxi) any other terms of the series, which will not be inconsistent
with the provisions of this Indenture; and
(xxii) whether or not the Nominal Liquidation Amount of such series,
class or tranche belongs to the portion of the Collateral Certificate
constituting an Excluded Series under the Series [ ] Supplement;
all upon such terms as may be determined in or pursuant to an Issuer's
Certificate or in or pursuant to a supplemental indenture with respect to such
series, class or tranche.
(i) The form of the Notes of each series, class or tranche will be
established pursuant to the provisions of this Indenture in or pursuant to the
Issuer's Certificate or in or pursuant to the supplemental indenture creating
such series, class or tranche. The Notes of each series, class or tranche will
be distinguished from the Notes of each other series, class or tranche in such
manner, reasonably satisfactory to the Trustee, as the Issuer may determine.
(j) Unless otherwise provided with respect to Notes of a particular series,
class or tranche, the Notes of any series, class or tranche will be issued in
registered form, without coupons.
(k) Any terms or provisions in respect of the Notes of any series, class or
tranche issued under this Indenture may be determined pursuant to this Section
if the applicable terms document provides for the method by which such terms or
provisions will be determined.
SECTION 302. Denominations. The Notes of each tranche will be issuable in
such
38
denominations and currency as will be provided in the provisions of this
Indenture or in or pursuant to the applicable terms document. In the absence of
any such provisions with respect to the Notes of any tranche, the Notes of that
tranche will be issued in denominations of $1,000 and multiples thereof.
SECTION 303. Execution, Authentication and Delivery and Dating. (a) The
Notes will be executed on behalf of the Issuer by an authorized officer of the
Managing Beneficiary or the Issuer Trustee. The signature of any officer of the
Managing Beneficiary or the Issuer Trustee on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals who
were at any time the authorized officers of the Managing Beneficiary or the
Issuer Trustee will bind the Issuer, notwithstanding that such individuals or
any of them have ceased to hold such offices before the authentication and
delivery of such Notes or did not hold such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Notes executed by the Issuer to the
Trustee for authentication; and the Trustee will, upon Issuer Order,
authenticate and deliver such Notes as in this Indenture provided and not
otherwise.
(d) Before any such authentication and delivery, the Trustee will be
entitled to receive, in addition to any Issuer's Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and the
Issuer's Certificate and any other opinion or certificate relating to the
issuance of the tranche of Notes required to be furnished pursuant to Section
202 or Section 311.
(e) The Trustee will not be required to authenticate such Notes if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any tranche, all
Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in
39
the form provided for herein executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Note will be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 304. Temporary Notes. (a) Pending the preparation of definitive
Notes of any tranche, the Issuer may execute, and, upon receipt of the documents
required by Section 303, together with an Issuer Order, the Trustee will
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Issuer may determine, as evidenced by the Issuer's execution
of such Notes.
(b) If temporary Notes of any tranche are issued, the Issuer will cause
definitive Notes of such tranche to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes of such tranche
will be exchangeable for definitive Notes of such tranche upon surrender of the
temporary Notes of such tranche at the office or agency of the Issuer in a Place
of Payment, without charge to the Holder; and upon surrender for cancelation of
any one or more temporary Notes the Issuer will execute and the Trustee will
authenticate and deliver in exchange therefor a like stated principal amount of
definitive Notes of such tranche of authorized denominations and of like tenor
and terms. Until so exchanged the temporary Notes of such tranche will in all
respects be entitled to the same benefits under this Indenture as definitive
Notes of such tranche.
SECTION 305. Registration, Transfer and Exchange. (a) The Issuer will keep
or cause to be kept a register (herein sometimes referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuer will provide for the registration of Notes, or of Notes of a
particular tranche, and for transfers of Notes or of Notes of such tranche. Any
such register will be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the information contained in such register or registers will be available for
inspection by the Trustee at the office or agency to be maintained by the Issuer
as provided in Section 1102.
(b) Subject to Section 204, upon surrender for transfer of any Note of any
tranche at the office or agency of the Issuer in a Place of Payment, the Issuer
will execute, and the Trustee will authenticate and deliver, in the name of the
designated transferee or transferees, one or more
40
new Notes of such tranche of any authorized denominations, of a like aggregate
stated principal amount, Expected Principal Payment Date and Legal Maturity Date
and of like tenor and terms.
(c) Subject to Section 204, at the option of the Holder, Notes of any
tranche may be exchanged for other Notes of such tranche of any authorized
denominations, of a like aggregate stated principal amount, Expected Principal
Payment Date and Legal Maturity Date and of like tenor and terms, upon surrender
of the Notes to be exchanged at such office or agency. Whenever any Notes are so
surrendered for exchange, the Issuer will execute, and the Trustee will
authenticate and deliver, the Notes which the Noteholder making the exchange is
entitled to receive.
(d) All Notes issued upon any transfer or exchange of Notes will be the
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such transfer
or exchange.
(e) Every Note presented or surrendered for transfer or exchange will (if
so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Issuer and the Note
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
(f) Unless otherwise provided in the Note to be transferred or exchanged,
no service charge will be made on any Noteholder for any transfer or exchange of
Notes, but the Issuer may (unless otherwise provided in such Note) require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Notes, other than
exchanges pursuant to Section 304 or 1006 not involving any transfer.
(g) None of the Issuer, the Trustee, any agent of the Trustee, any Paying
Agent or the Note Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
(h) The Issuer initially appoints Citibank, N.A., to act as Note
Registrar for the Notes on its behalf. The Issuer may at any time and from
time to time authorize any Person to act as Note Registrar in place of the
Trustee with respect to any tranche of Notes issued under this Indenture.
41
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes. (a) If (i) any
mutilated Note is surrendered to the Trustee, or the Issuer and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Issuer and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Issuer or the Trustee that such Note has been acquired
by a bona fide purchaser, the Issuer will execute and upon its request the
Trustee will authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a new Note of like tenor, series,
class or tranche, Expected Principal Payment Date, Legal Maturity Date and
stated principal amount, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Issuer in its discretion may, instead
of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of the same series, class or tranche duly issued hereunder.
(e) The provisions of this Section are exclusive and will preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved. (a) Unless
otherwise provided with respect to such Note pursuant to Section 301, interest
payable on any Note will be paid to the Person in whose name that Note (or one
or more Predecessor Notes) is registered at the close of business on the most
recent Record Date.
42
(b) Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Note will carry the rights to interest accrued or accreted and unpaid,
and to accrue or accrete, which were carried by such other Note.
SECTION 308. Persons Deemed Owners. The Issuer, the Trustee and any agent
of the Issuer or the Trustee may treat the Person in whose name any Note is
registered in the Note Register as the owner of such Note for the purpose of
receiving payment of principal of and (subject to Section 307) interest on such
Note and for all other purposes whatsoever, whether or not such Note be overdue,
and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee
will be affected by notice to the contrary.
SECTION 309. Cancelation. All Notes surrendered for payment, redemption,
transfer, conversion or exchange will, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and, if not already canceled, will be
promptly canceled by it. The Issuer may at any time deliver to the Trustee for
cancelation any Notes previously authenticated and delivered hereunder which the
Issuer may have acquired in any manner whatsoever, and all Notes so delivered
will be promptly canceled by the Trustee. No Note will be authenticated in lieu
of or in exchange for any Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. The Trustee will dispose of all canceled
Notes in accordance with its customary procedures and will deliver a certificate
of such disposition to the Issuer.
SECTION 310. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, (a) interest on the Notes computed at a fixed rate
will be calculated on the basis of a 360-day year of twelve 30-day months and
(b) interest on Notes computed on the basis of a floating or periodic rate will
be calculated on the basis of a 360-day year for the actual number of days
elapsed.
SECTION 311. New Issuances of Notes. (a) The Issuer may issue new series of
Notes, so long as the following conditions precedent are satisfied:
(i) on or before the fourth Business Day before the date that the new
issuance is to occur, the Issuer gives the Trustee and the Rating Agencies
written notice of the issuance;
43
(ii) the Issuer will have delivered to the Trustee an Issuer's
Certificate to the effect that (A) the Issuer reasonably believes that the
new issuance will not at the time of its occurrence or at a future date
cause an Adverse Effect on any Notes; (B) all instruments furnished to the
Trustee conform to the requirements of the Indenture and constitute
sufficient authority hereunder for the Trustee to authenticate and deliver
such Notes; (C) the form and terms of such Notes have been established in
conformity with the provisions of this Indenture; (D) all laws and
requirements with respect to the execution and delivery by the Issuer of
such Notes have been complied with, all representations and warranties in
the Trust Agreement with respect to the execution and delivery by the
Issuer of such Notes have been complied with, the Issuer has the corporate
power to issue such Notes and such Notes have been duly authorized and
delivered by the Issuer and, assuming due authentication and delivery by
the Trustee, constitute legal, valid and binding obligations of the Issuer
enforceable in accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws and legal principles affecting creditors' rights generally
from time to time in effect and to general equitable principles, whether
applied in an action at law or in equity) and entitled to the benefits of
this Indenture, equally and ratably with all other Notes, if any, of such
series, class or tranche Outstanding, subject to the terms of this
Indenture and each terms document; (E) if the authentication and delivery
relates to a new series, class or tranche of Notes created by a
supplemental indenture, also stating that all laws and requirements with
respect to the form and execution by the Issuer of the supplemental
indenture with respect to that series, class or tranche of Notes have been
complied with, the Issuer has corporate power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action
for those purposes and any such supplemental indenture has been executed
and delivered and constitutes the legal, valid and binding obligation of
the Issuer enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and to general
equitable principles, whether applied in an action at law or in equity);
and (F) such other matters as the Trustee may reasonably request;
(iii) the Issuer will have delivered to the Trustee and the Rating
Agencies a Master Trust Tax Opinion and an Issuer Tax Opinion with respect
to such issuance; and
44
(iv) as of the date of the new issuance and after giving effect to the
new issuance, the weighted average rate of interest accruing (or accreting)
and payable by the Issuer with respect to all classes of Notes (after
giving effect to all Performing Derivative Agreements) will not be greater
than ____% per annum;
(v) at the time of the new issuance, the Notes of the new issuance
will be rated no lower than the following ratings categories by at least
one nationally recognized Rating Agency:
Note Rating
------------------------ ----------------------
Class A AAA/Aaa
Class B A/A
Class C BBB/Baa
(vi) no Amortization Event as defined in the Pooling and Servicing
Agreement will have occurred and be continuing as of the date of the new
issuance;
(vii) in the case of a new issuance of a class of foreign currency
Notes or floating rate Notes with an interest rate based on an index other
than the London interbank offered rate or the rate, the Issuer shall have
obtained confirmation from the applicable Rating Agencies that such new
issuance will not have a Ratings Effect on any Outstanding Notes;
(viii) the Invested Amount of the Collateral Certificate will be
increased by an amount equal to the Initial Dollar Principal Amount of the
Notes issued in the new issuance;
(ix) in the case of foreign currency Notes, the Issuer will have
appointed a one or more Paying Agents in the appropriate countries;
(x) the conditions specified in Sections 312 and 313, as applicable,
are satisfied;
(xi) the Issuer will have notified the Master Trust to what extent the
Nominal Liquidation Amount of the new issuance will constitute an Excluded
Series under the Series [ ] Supplement; and
45
(xii) any other conditions specified in the applicable terms document;
provided, however, in the case of the conditions provided in clauses (iv), (v)
and (viii), such condition needs not be satisfied if the Issuer has obtained
written notification from each applicable Rating Agency that there will be no
Ratings Effect with respect to any Outstanding tranche of Notes as a result of
the issuance of the applicable tranche of Notes.
(b) The Issuer may issue new classes or tranches of Notes of currently
Outstanding Multiple Issuance Series, so long as the following conditions
precedent are satisfied:
(i) on or before the fourth Business Day before the date
that the new issuance is to occur, the Issuer gives the Trustee and
the Rating Agencies notice of the new issuance;
(ii) the Issuer delivers to the Trustee and the Rating
Agencies an Issuer's Certificate to the effect that the new issuance
will not at the time of its issuance or at a future date cause an
Adverse Effect;
(iii) if the Initial Dollar Principal Amount of the
newly-issued tranche of Notes equals or exceeds $250,000,000, or a
condition is not satisfied pursuant to the proviso of this clause,
the Issuer will have delivered to the Trustee and the Rating Agencies
an Issuer Tax Opinion, a Master Trust Tax Opinion;
(iv) as of the date of the new issuance and after giving
effect to the new issuance, the weighted average rate of interest
accruing (or accreting) and payable by the Issuer with respect to all
classes of Notes (after giving effect to all Performing Derivative
Agreements) will not be greater than ____% per annum;
(v) at the time of the new issuance, the Notes of the new
issuance will be rated no lower than the following ratings categories
by at least of one nationally recognized Rating Agency:
46
Note Rating
-------------------- -----------------
Class A AAA
Class B A
Class C BBB
(vi) no Amortization Event as defined in the Pooling and
Servicing Agreement will have occurred and be continuing as of the
date of the new issuance;
(vii) in the case of a new issuance of a class of foreign
currency Notes or floating rate Notes with an interest rate based on
an index other than the London interbank offered rate or the [ ] rate,
the Issuer shall have obtained confirmation from the applicable Rating
Agencies that such new issuance will not have a Ratings Effect on any
outstanding Notes;
(viii) the Invested Amount of the Collateral Certificate will be
increased by an amount equal to the Initial Dollar Principal Amount of
the Notes issued in the new issuance;
(ix) in the case of foreign currency Notes, the Issuer will have
appointed a one or more Paying Agents in the appropriate countries;
(x) the conditions specified in Sections 312 and 313, as
applicable, are satisfied;
(xi) the Issuer will have notified the Master Trust to what
extent the Nominal Liquidation Amount of the new issuance will
constitute an Excluded Series under the Series [ ] Supplement; and
(xii) any other conditions specified in the applicable terms
document;
provided, however, in the case of the conditions provided in clauses (iv), (v)
and (viii), such condition needs not be satisfied if the Issuer has obtained
written notification from each applicable Rating Agency that there will be no
Ratings Effect with respect to any Outstanding tranche of Notes as a result of
the issuance of the applicable tranche of Notes.
47
(c) The Issuer and the Trustee are not required to obtain the consent of
any Noteholder of any Outstanding series, class or tranche to issue any
additional Notes of any series, class or tranche.
SECTION 312. Specification of Required Subordinated Amount and other Terms
with Respect to each Tranche. (a) The applicable terms document for each tranche
of Class A Notes will specify a Required Subordinated Amount of Class B Notes
and Class C Notes, and the applicable terms document for each tranche of Class B
Notes will specify a Required Subordinated Amount of Class C Notes. For senior
classes of Discount Notes, the applicable terms document will specify the
Required Subordinated Amount that must be maintained while such Discount Notes
are outstanding.
(b) With respect to senior classes of non Discount Notes of a multiple
issuance series, the Class A Required Subordinated Amount on its issuance date
of Class B Notes will be an amount equal to __% of the Initial Dollar Principal
Amount of that tranche of Class A Notes, and the Class A Required Subordinated
Amount on its issuance date of Class C Notes will be an amount equal to __% of
the Initial Dollar Principal Amount of that tranche of Class A Notes. The Class
B Required Subordinated Amount on its issuance date of Class C Notes will be an
amount equal to __% of the Initial Dollar Principal Amount of that tranche of
Class B Notes. With respect to senior classes of Discount Notes, the Required
Subordinated Amount will be stated in the applicable terms document.
(c) The Issuer may change these percentage amounts at any time without the
consent of any Noteholders so long as the Issuer has received confirmation from
the Rating Agencies that have rated any Outstanding Notes of that series that
the change in the Required Subordinated Amount will not result in a Ratings
Effect with respect to any Outstanding Notes in that series.
SECTION 313. Required Subordinated Amount Conditions to Issuance of a
Tranche of a Senior Class of a Multiple Issuance Series. (a) Class A Required
Subordinated Amount of Class B Notes. On the issuance date of a tranche of Class
A Notes of a Multiple Issuance Series, immediately after giving effect to such
issuance, the available subordinated amount of Class B Notes of that series must
be at least equal to the Class A Required Subordinated Amount of Class B Notes
for that series. For purposes of this clause, the available subordinated amount
of Class B Notes of a series as of any date means:
48
(i) the aggregate Nominal Liquidation Amount of all Outstanding
tranches of Class B Notes on that date after giving effect to any
issuances or repayments of tranches of Class B Notes to be made on
such day),
minus
(ii) the aggregate amount of the Class A Required Subordinated
Amount of Class B Notes for all other tranches of Class A Notes of
that series which are Outstanding on that date after giving effect to
any issuances or repayments in full of any tranches of Class A Notes
to be made on that day,
plus
(iii) the aggregate amount of all reductions relating to
reallocations pursuant to Section 502(a) and allocations of Investor
Charge-Offs in the Nominal Liquidation Amount of all tranches of Class
B Notes that will be outstanding immediately after giving effect to
such issuance, but only for such reductions which have occurred since
the earliest issuance date of a tranche of Class A Notes that will be
Outstanding after giving effect to such issuance.
(b) Class A Required Subordinated Amount of Class C Notes. On the issuance
date of a tranche of Class A Notes of a Multiple Issuance Series, immediately
after giving effect to such issuance, the available subordinated amount of Class
C Notes of that series must be at least equal to the Class A Required
Subordinated Amount of Class C Notes for that series. For purposes of this
clause, the available subordinated amount of Class C Notes of a series as of any
date means:
(i) the aggregate Nominal Liquidation Amount of all
Outstanding tranches of Class C Notes on that date after giving
effect to any issuances or repayments of tranches of Class C Notes to
be made on such day),
minus
(ii) the aggregate amount of the Class A Required
Subordinated Amount of Class C Notes for all other tranches of Class
A Notes of that series which are Outstanding on that date after
giving effect to any issuances or repayments in full of any tranches
of
49
Class A Notes to be made on that day,
plus
(iii) the aggregate amount of all reductions relating to
reallocations pursuant to Section 502(a) and allocations of Investor
Charge-Offs in the Nominal Liquidation Amount of all tranches of
Class C Notes that will be outstanding immediately after giving
effect to such issuance, but only for such reductions which have
occurred since the earliest issuance date of a tranche of Class A
Notes that will be Outstanding after giving effect to such issuance.
(c) Class B Required Subordinated Amount of Class C Notes. On the
issuance date of a tranche of Class B Notes of a Multiple Issuance Series,
immediately after giving effect to such issuance, the available subordinated
amount of Class C Notes of that series must be at least equal to the Class B
Required Subordinated Amount of Class C Notes for that series. For purposes of
this clause, the available subordinated amount of Class C Notes of a series as
of any date means:
(i) the aggregate Nominal Liquidation Amount of all
Outstanding tranches of Class C Notes on that date after giving
effect to any issuances or repayments of tranches of Class C Notes to
be made on such day),
minus
(ii) the aggregate amount of the Class B Required
Subordinated Amount of Class C Notes for all other tranches of Class
B Notes of that series which are Outstanding on that date after
giving effect to any issuances or repayments in full of any tranches
of Class B Notes to be made on that day,
plus
(iii) the aggregate amount of all reductions relating to
reallocations pursuant to Section 502(a) and allocations of Investor
Charge-Offs in the Nominal Liquidation Amount of all tranches of
Class C Notes that will be Outstanding immediately after giving
effect to such issuance, but only for such reductions which have
occurred since the earliest issuance date of a tranche of Class B
Notes that will be Outstanding after giving
50
effect to such issuance.
ARTICLE IV
Accounts and Investments
SECTION 401. Collections. Except as otherwise expressly provided herein,
the Trustee may demand payment or delivery of, and will receive and collect,
directly and without intervention or assistance from any fiscal agent or other
intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture including, without limitation, all funds and
other property payable to the Trustee pursuant to the Collateral (collectively,
the "Collections"). The Trustee will hold all such money and property received
by it as part of the Collateral and will apply it as provided in this Indenture.
SECTION 402. Accounts. (a) Accounts; Deposits to and Distributions from
Accounts. On or before the Effective Date, the Issuer will open and will
thereafter cause to be maintained, at an Eligible Institution (initially
Citibank, N.A.), one or more segregated deposit accounts (collectively, the
"Collection Account"). Subject to Section 403(b), and except as provided in
Sections 404, 504, 511, 522 and 708, the Issuer will require that all
Collections be deposited into the Collection Account. On or before the Effective
Date, the Trustee will cause to be established and maintained at an Eligible
Institution (initially Citibank, N.A.), three segregated trust accounts
denominated as follows: the "Interest Funding Account", the "Principal Funding
Account" and the "Class C Reserve Account", and from time to time in connection
with the issuance of a series, class or tranche of Notes, the Trustee may
establish one or more segregated trust accounts denominated as "Supplemental
Accounts". If, at any time, either the Collection Account, Interest Funding
Account, Principal Funding Account or Class C Reserve Account ceases to be an
Eligible Deposit Account, the Issuer will within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Collection Account, Interest Funding Account,
Principal Funding Account or Class C Reserve Account, as the case may be, which
is an Eligible Deposit Account, transfer any cash and/or investments to such new
Collection Account, Interest Funding Account, Principal Funding Account or Class
C Reserve Account and from the date such new Interest Funding Account, Principal
Funding Account or Class C
51
Reserve Account is established, it will be the "Collection Account", "Interest
Funding Account", "Principal Funding Account" or "Class C Reserve Account", as
the case may be. Each tranche of Notes will have its own sub-Account within the
Interest Funding Account and the Principal Funding Account. Each tranche of
Class C Notes will have its own sub-Account within the Class C Reserve Account.
Supplemental Accounts will be created as specified in the applicable terms
document. The Interest Funding Account, the Principal Funding Account and the
Class C Reserve Account and the Supplemental Accounts will receive deposits
pursuant to Article V. Any Supplemental Account will receive deposits as set
forth in a supplemental indenture amending Article V.
(b) All payments to be made from time to time by the Trustee to Noteholders
out of funds in the Accounts pursuant to this Indenture will be made by the
Trustee to the Paying Agent not later than 12:00 noon on the applicable Payment
Date but only to the extent of available funds in the applicable sub-Account or
as otherwise provided in Article V.
SECTION 403. Investment of Funds in the Accounts. (a) The funds on deposit
in the Accounts will be invested and reinvested by the Trustee at the direction
of the Issuer in one or more Eligible Investments. The Issuer may authorize the
Trustee to make specific investments pursuant to written, telegraphic or
telephonic (subsequently confirmed in writing) instructions, in such amounts as
the Issuer will specify. Notwithstanding the foregoing, funds held by the
Trustee in any of the Accounts will be invested in Eligible Investments that
will mature in each case no later than the date on which such funds in the
Accounts are scheduled to be transferred or distributed by the Trustee pursuant
to this Indenture (or as much earlier as necessary to provide for timely payment
of principal or interest on the applicable Principal Payment Date or Interest
Payment Date).
(b) All funds deposited from time to time in Accounts pursuant to this
Indenture and all investments made with such funds will be held by the Trustee
in the Accounts as part of the Collateral as herein provided, subject to
withdrawal by the Trustee for the purposes set forth herein. The Issuer will not
direct the Trustee to make any investment of any funds or to sell any investment
held in the Accounts unless the security interest granted and perfected in such
Accounts will continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by the Issuer or the
Trustee.
(c) Funds and other property in any of the Accounts will not be commingled
with any other funds or property of the Issuer. Notwithstanding the foregoing,
the Trustee may hold any funds or other property received or held by it as part
of the Accounts in collecting accounts
52
maintained by it in the normal course of its business and containing funds held
by it for other Persons (which may include the Issuer or an Affiliate thereof),
provided that such accounts are under the sole control of the Trustee and the
Trustee maintains adequate records indicating the ownership of all such funds or
property and the portions thereof held for credit to the applicable Accounts.
(d) The Issuer will not direct the Trustee to make any investment of any
funds in any of the Accounts or to sell any investment held in such Accounts
except under the following terms and conditions:
(i) each such investment will be made in the name of the Trustee (in
its capacity as such) or in the name of a nominee of the Trustee under its
complete and exclusive dominion and control (or, if, as indicated by an
Opinion of Counsel delivered to the Trustee, applicable law provides for
perfection of pledges of an instrument not evidenced by a certificate or
other instrument through registration of such pledge on books maintained by
or on behalf of the issuer of such investment, such pledge may be so
registered);
(ii) the Trustee will have sole control over such investment, the
income thereon and the proceeds thereof;
(iii) other than the investments described in clause (i), any
certificate or other instrument evidencing such investment will be
delivered directly to the Trustee or its agent; and
(iv) the proceeds of each sale of such an investment will be remitted
by the purchaser thereof directly to the Trustee for deposit in the Account
in which such investment was held.
(e) All income or other gain from investments of funds on deposit in the
Accounts (other than the Principal Funding Account) will be treated as Finance
Charge Collections pursuant to Section 501. Any loss resulting from such
investments will be charged to the sub- Accounts pro rata based on the amount on
deposit in such sub-Account.
53
The Issuer may use weighted averaging or any other reasonable method for
allocating losses among such sub-Accounts. Subject to Section 801(c), the
Trustee will not in any way be held liable by reason of any insufficiency in
such sub-Accounts resulting from any loss on any Eligible Investment included
therein except for losses attributable to the Trustee's failure to make
payments on such Eligible Investments issued by the Trustee, in its commercial
capacity, in accordance with their terms.
(f) All income or other gain from investments of funds on deposit in the
Principal Funding Account will be applied as set forth in Section 506.
(g) Funds on deposit in the Accounts will be invested and reinvested by
the Trustee to the fullest extent practicable, in such manner as the Trustee
will from time to time determine, but only in one or more Eligible
Investments, upon the occurrence of any of the following events:
(i) the Issuer will have failed to give investment directions to the
Trustee; or
(ii) an Event of Default will have occurred and is continuing but no
Notes have been declared due and payable pursuant to Section 702.
SECTION 404. Excess Funds in the Interest Funding sub-Accounts or
Principal Funding sub-Accounts. (a) With respect to any Due Period, if the
Issuer determines that the amount on deposit in any Interest Funding
sub-Account (after giving effect to all deposits and withdrawals to be made on
with respect to such Due Period) is greater than the amount targeted to be on
deposit in such Interest Funding sub-Account with respect to such Due Period
(subject to Section 507(e)), such excess will be withdrawn from such
sub-Account and applied as Finance Charge Collections pursuant to Section 501.
(b) With respect to any Due Period, if the Issuer determines that the
amount on deposit in any Principal Funding sub-Account (after giving effect to
all deposits and withdrawals to be made on with respect to such Due Period) is
greater than the Outstanding Dollar Principal Amount of the applicable tranche
less the amount of all unreimbursed reductions to the Nominal Liquidation
Amount made pursuant to clauses (v) and (vi) of the definition of Nominal
Liquidation Amount, such excess will be withdrawn from such sub-Account and
paid to the Issuer.
54
ARTICLE V
Allocations, Deposits and Payments
SECTION 501. Allocations of Finance Charge Collections. With respect to
each Due Period, the Trustee will allocate (i) Finance Charge Collections
received pursuant to Section 4.02(a)(iii) of the Series [ ]-00 Supplement,
(ii) net earnings and other gain on amounts on deposit in the Accounts (other
than the Principal Funding Account) received pursuant to Section 403(e) and
Section 404, as follows:
(a) first, to pay accrued and unpaid fees and expenses of, and other
amounts due to, the Trustee pursuant to Section 807;
(b) second, to make the targeted deposits to the Interest Funding
Account pursuant to Section 503;
(c) third, to make the targeted deposit to the Class C Reserve
Account, if any, pursuant to Section 517;
(d) fourth, to the Issuer, to make the targeted increase in the
Invested Amount of the Collateral Certificate, if any, pursuant to
Sections 519(c); and
(e) fifth, to the Issuer.
SECTION 502. Allocations of Principal Collections. With respect to each
Due Period, the Trustee will allocate Principal Collections received from the
Collateral Certificate as follows:
(a) first, subject to the limitations set forth in Sections 512,
513, 514, 515 and 516, in an amount to make any payment or deposit
targeted pursuant to Section 501(a) or (b) that was not made from Finance
Charge Collections (except that no reallocation of Principal Collections
which would result in the reduction of the Nominal Liquidation Amount of
any class of Notes will be used for a deposit into the Interest Funding
Account that will be used (i) to pay interest on any Note of that class
or a subordinated class, (ii) to make a payment on a Derivative Agreement
entered into with respect to
55
interest on any Note of that class or a subordinated class, or (iii) to
fund an increase in the Invested Amount of the Collateral Certificate
required by the accretion of interest on a Discount Note of that class or
a subordinated class);
(b) second, to make the targeted deposits to the Principal Funding
Account pursuant to Section 508; and
(c) third, to the Issuer, to maintain the Invested Amount of the
Collateral Certificate in an amount equal to the aggregate amount of the
Nominal Liquidation Amount of all tranches of Notes.
SECTION 503. Targeted Deposits of Furnace Charge Collections and
Principal Collections to the Interest Funding Account. The allocation of
Finance Charge Collections pursuant to Section 501 and reallocation of
Principal Collections pursuant to Section 502(a) targeted to be made with
respect to each Due Period is an amount equal to the sum of the following
amounts. A single tranche of Notes may be entitled to more than one of the
following deposits in any month.
(a) Specified Deposits. If the terms document for a tranche of Notes
specifies a deposit to be made in lieu of the deposits described in this
Section, the deposit targeted for that tranche of Notes with respect to
each Due Period is the specified amount. Subject to Section 521, these
deposits will be made on the dates specified in the applicable Note.
(b) Monthly Interest Payments not Covered by a Derivative Agreement.
If a tranche of Notes provides for monthly interest payments that are not
covered by a Derivative Agreement, the deposit targeted for that tranche
of Notes with respect to each Due Period is equal to the total amount of
interest on the Adjusted Outstanding Dollar Principal Amount of that
tranche of Notes which will be due and unpaid on the Interest Payment
Date next following the end of that Due Period, including shortfalls in
any targeted deposit amount determined on the same basis for that tranche
of Notes from earlier Interest Payment Dates, if any. Subject to Section
521, these deposits will be made on the Interest Payment Date for the
applicable tranche.
(c) Periodic Interest Payments not Covered by a Derivative
Agreement. If a tranche of Notes provides for quarterly, semi-annual,
annual or other periodic payments
56
of interest (but less frequently than monthly), and that interest is not
covered by a Derivative Agreement, the deposit targeted for that tranche
of Notes with respect to each Due Period will be equal to the amount of
interest accrued on the Adjusted Outstanding Dollar Principal Amount of
that tranche of Notes during the period from the prior Monthly Interest
Date (or the date of issuance of such tranche for the determination with
respect to the first Monthly Interest Date) to the first Monthly Interest
Date after the end of such Due Period plus any targeted deposits which
were to have been made with respect to prior Interest Deposit Dates but
were not made. Subject to SECTION 521, these deposits will be made on
each Monthly Interest Date for the applicable tranche.
(d) Notes with a Performing Derivative Agreement. (i) If a tranche
of Dollar Notes or foreign currency Notes which has a Performing
Derivative Agreement for interest provides for monthly payments to the
applicable Derivative Counterparty, the deposit targeted for that tranche
of Notes with respect to each Due Period is equal to the amount required
to be paid to the applicable Derivative Counterparty on the next payment
date following the end of that Due Period, plus any shortfalls in any
targeted deposit amount determined on the same basis for that tranche of
Notes from earlier Due Periods, if any. Subject to Section 521, these
deposits will be made on the payment date specified in the applicable
Derivative Agreement. (ii) If a tranche of Dollar Notes or foreign
currency Notes which has a Performing Derivative Agreement for interest
provides for payments less frequently than monthly to the applicable
Derivative Counterparty, the deposit targeted for that tranche of Notes
with respect to each Due Period is equal to the amount required to be
paid to the Derivative Counterparty on the payment date next following
the end of that Due Period, divided by the number of months in the period
between payment dates, plus shortfalls in any targeted deposit amount
determined on the same basis for that tranche of Notes from earlier Due
Periods, if any. Subject to Section 521, these deposits will be made on
the payment date specified in the applicable Derivative Agreement in the
month in which payment is scheduled to be made to the Derivative
Counterparty, and on the Monthly Interest Date in each other month.
(e) Dollar Notes and non-Performing Derivative Agreements. If a
tranche of Dollar Notes has a non-Performing Derivative Agreement for
interest, then the calculation of the targeted deposit to the applicable
Interest Funding sub-Account is made using to the stated interest rate,
amount of interest and frequency of interest
57
payments for the applicable tranche of Notes. Subject to Section 521,
these deposits will be made on each Monthly Interest Date for the
applicable tranche.
(f) Foreign Currency Notes and non-Performing Derivative Agreements.
If a tranche of foreign currency Notes has a non-Performing Derivative
Agreement for interest, then the calculation of the deposit targeted is
made with reference to the amount of Dollars that would have been payable
to the applicable Derivative Counterparty under the Derivative Agreement
during that period if such Derivative Agreement were Performing. Subject
to Section 521, these deposits will be made on each Monthly Interest Date
for the applicable tranche.
(g) Discount Notes. In the case of a tranche of Discount Notes, the
deposit targeted for that tranche of Notes with respect to any Due Period
is equal to the amount of accretion of principal of such tranche of Notes
from the prior Monthly Principal Date (or in the case of the first
Monthly Principal Date, from the date of issuance of such tranche) to the
first Monthly Principal Date after the end of such Due Period. Subject to
Section 521, these deposits will be made on each Monthly Principal Date.
SECTION 504. Payments Received from Derivative Counterparties for
Interest; Other Deposits to the Interest Funding Account. The following
deposits and payments will be made to the Interest Funding Account on the
following dates:
(a) Payments Received From Derivative Counterparties for Interest.
Payments received under Derivative Agreements for interest in Dollars
will be deposited into the applicable Interest Funding sub-Account.
Payments received under Derivative Agreements for interest in foreign
currencies will be made directly to the applicable Paying Agent for
payment to the Holders of the applicable tranche of Notes, or as
otherwise specified in the applicable Derivative Agreement.
(b) Principal Funding Account Earnings. Amounts received pursuant to
Section 506(d) for any tranche of Notes will be deposited into the
applicable Interest Funding sub-Account on each Monthly Interest Date.
(c) Class C Reserve Account. Withdrawals made from any Class C
Reserve sub- Account pursuant to Section 518(a) will be deposited into
the applicable Interest
58
Funding sub-Account on the date specified in Section 518(a).
SECTION 505. Allocation of Deposits to Interest Funding sub-Accounts. The
aggregate amount of the deposits to be made to the Interest Funding Account
pursuant to Section 503 for each Due Period will be allocated, and a portion
deposited into the Interest Funding sub- Account for each tranche of Notes, as
follows:
(a) Available Amounts Equal to Targeted Amounts. If the amount of
funds available for a Due Period pursuant to Section 501 (including
reallocations of Principal Collections pursuant to Section 502(a)) is at
least equal to the aggregate amount of the deposits and payments targeted
by Section 503, then the full amount of each such deposit and payment
will be made.
(b) Available Amounts are Less than Targeted Amounts. (i) If the
amount of funds available for a Due Period pursuant to Section 501
(including reallocations of Principal Collections pursuant to SECTION
502(a)) is less than the aggregate amount of the deposits and payments
targeted by Section 503, then the amount available will be allocated to
each tranche of Notes pro rata based on the ratio of the Adjusted
Outstanding Dollar Principal Amount of that tranche to the aggregate
Adjusted Outstanding Dollar Principal Amount of all tranches to receive
deposits.
(ii) For all series identified as belonging to "Group 1", the
amounts allocated to those series pursuant to clause (b) (i) will be
reaggregated into a single pool, and reallocated to each targeted deposit
pro rata based on the amount of the targeted deposits to the applicable
Interest Funding sub-Account pursuant to Section 503.
(iii) For all series identified as belonging to another group, the
reallocation of amounts allocated pursuant to clause (b)(i) will be based
on a rule for that group set forth in a supplement to this Indenture.
(c) Other Funds not Reallocated. Funds deposited into any Interest
Funding sub- Account pursuant to Sections 504 and 506 and funds on
deposit from prior Due Periods will not be reallocated to any other
Interest Funding sub-Account.
SECTION 506. Deposit of Principal Funding sub-Account Earnings in
Interest
59
Funding sub-Accounts; Principal Funding sub-Account Earnings Shortfall;
Payments Received from Derivative Counterparties for Interest. (a) The Issuer
will notify the Master Trust from time to time of the aggregate amount on
deposit in the Principal Funding Account.
(b) From time to time after the end of each Due Period, the Issuer will
calculate the Principal Funding sub-Account Earnings Target, the Principal
Funding sub-Account Earnings, and the Principal Funding sub-Account Earnings
Shortfall (if any) for the Principal Funding sub- Account for the each tranche
of Notes for the period from the previous Interest Deposit Date (or with
respect to the first Interest Deposit Date with respect to such tranche, the
date of issuance of such tranche) to the first Interest Deposit Date after the
end of such Due Period (for purposes of this Section, a "monthly period").
(c) If there is any Principal Funding sub-Account Earnings Shortfall for
any Principal Funding sub-Account for such monthly period, or any unpaid
Principal Funding sub-Account Earnings Shortfall for any Principal Funding
sub-Account from any earlier monthly period, the Issuer will notify the Master
Trust pursuant to Section 5.04 of the Series [ ]-00 Supplement of such amount.
(d) On each Monthly Interest Date, the Issuer will deposit into each
applicable Interest Funding sub-Account the following amounts:
(i) the Principal Funding sub-Account Earnings for the related
Principal Funding sub-Account for such monthly period, and
(ii) the amount received by the Issuer pursuant to SECTION 5.04
of the Series [ ]-00 Supplement with respect to such Principal
Funding sub-Account, if any.
If the amount of Principal Funding sub-Account Earnings for any tranche of
Notes for any Due Period is greater than the Principal Funding sub-Account
Earnings Target for such Due Period, the amount of the excess will be paid to
the Issuer.
(e) Net payments received under Derivative Agreements for interest on a
tranche of Notes payable in Dollars will be deposited into the applicable
Interest Funding sub-Account on the date of receipt by the Issuer. Net
payments received under Derivative
60
Agreements for interest on foreign currency Notes will be made directly to the
applicable Paying Agent for payment to the Holders of applicable tranche of
Notes, or as otherwise specified in the applicable Derivative Agreement.
SECTION 507. Withdrawals from Interest Funding Account. Withdrawals made
pursuant to this Section with respect to any tranche will be made from the
Interest Funding sub- Account established for that tranche only after all
allocations and reallocations have been made pursuant to Sections 503, 504,
505 and 506. A single tranche of Notes may be entitled to more than one of the
following withdrawals in any month.
(a) Withdrawals for Dollar Notes. On each applicable Interest
Payment Date (or as much earlier as specified in the applicable terms
document) with respect to each tranche of Dollar Notes, an amount equal
to the lesser of (i) interest due on the applicable tranche of Notes on
the applicable Interest Payment Date, and (ii) the amount on deposit in
the applicable Interest Funding sub-Account will be withdrawn from such
Interest Funding sub-Account and remitted to the applicable Paying Agent.
(b) Withdrawals for Discount Notes. On each applicable Monthly
Principal Date, with respect to each tranche of Discount Notes, an amount
equal to the lesser of (i) the amount of the accretion of principal of
such tranche of Notes from the prior Monthly Principal Date (or in the
case of the first Monthly Principal Date, the date of issuance of such
tranche) to the applicable Monthly Principal Date, and (ii) the amount on
deposit in the applicable Interest Funding sub-Account will be withdrawn
from such Interest Funding sub-Account and invested in the Collateral
Certificate pursuant to Section 519(a).
(c) Withdrawals for Notes with Performing Derivative Agreements for
Interest. On each date on which a payment is required under the
applicable Derivative Agreement (or as much earlier as specified in the
applicable terms document) with respect to any tranche of Notes which has
a Performing Derivative Agreement for interest, an amount equal to the
lesser of (i) the amount of the payment to be made under the applicable
Derivative Agreement, and (ii) the amount on deposit in the applicable
Interest Funding sub-Account will be withdrawn from such Interest Funding
sub-Account and paid to the applicable Derivative Counterparty.
61
(d) Withdrawals for Notes with non-Performing Derivative Agreements
for Interest in Dollars. On each Interest Payment Date (or as much
earlier as specified in the applicable terms document) with respect to a
tranche of Dollar Notes that has a nonPerforming Derivative Agreement for
interest an amount equal to the lesser of (i) the amount of interest
payable on such Interest Payment Date, and (ii) the amount on deposit in
the applicable Interest Funding sub-Account will be withdrawn from such
Interest Funding sub-Account and remitted to the applicable Paying Agent.
(e) Withdrawals for Notes with non-Performing Derivative Agreements
for Foreign Currency Interest. On each Interest Payment Date with respect
to a tranche of foreign currency Notes that has a non-Performing
Derivative Agreement for interest (or as much earlier as specified in the
applicable terms document), an amount equal to the lesser of (i) the
amount of Dollars necessary to be converted at the applicable Spot
Exchange Rate to pay the foreign currency interest due on such tranche of
Notes on the applicable Interest Payment Date, and (ii) the amount on
deposit in the applicable Interest Funding sub-Account will be withdrawn
from such sub-Account and converted to the applicable foreign currency at
the Spot Exchange Rate and remitted to the applicable Paying Agent. Any
excess Dollar amount will be retained on deposit in the applicable
Interest Funding sub-Account to be applied to make interest payments on
later Interest Payment Dates, or paid to the Issuer when the principal
amount of the applicable Note is paid in full.
(f) Payment to Issuer. Upon payment in full of any tranche of Notes,
any amount on deposit in the applicable Interest Funding sub-Account will
be paid to the Issuer.
If the aggregate amount for withdrawal from an Interest Funding
sub-Account is less than all withdrawals required to be made from such
Interest Funding sub-Account in a month, then the amounts on deposit will be
withdrawn and applied pro rata based on the amounts of the withdrawals
required to be made.
SECTION 508. Targeted Deposits of Principal Collections to the Principal
Funding Account. The aggregate deposit targeted to be made to the Principal
Funding Account with Principal Collections with respect to any Due Period is
an amount equal to the sum of Principal Funding Account deposits targeted to
be made for each tranche of Notes. These targeted amounts are as follows:
62
(a) Expected Principal Payment Date. With respect to the Expected
Principal Payment Date of a tranche of Notes, the deposit targeted for
that tranche of Notes with respect to the most recently completed Due
Period, the deposit targeted for that tranche of Notes is equal to the
Nominal Liquidation Amount of that tranche of Notes. Subject to Section
521, these deposits will be made on the applicable Expected Principal
Payment Date.
(b) Budgeted Deposits. (i) With respect to each Due Period,
beginning with the twelfth Due Period before the Expected Principal
Payment Date of a tranche of Class A Notes but excluding the final Due
Period before the Expected Principal Payment Date of such tranche of
Class A Notes, the deposit targeted to be made into the Principal Funding
sub-Account for that tranche will be the Controlled Amortization Amount
for that tranche specified in the applicable terms document, or if no
such amount is specified equal to one-twelfth of the anticipated Nominal
Liquidation Amount of such tranche of Notes as of its Expected Principal
Payment Date. Subject to clause (ii) and SECTION 521, these deposits will
be made on the Monthly Principal Date.
(ii) Notwithstanding anything to the contrary in clause (i),
but subject to Section 521, the Issuer may postpone the date of the
targeted deposits under clauses (i) under the following
circumstances:
(A) Immediately before the twelfth full Due Period before
the Expected Principal Payment Date set for every Class A Note,
the Issuer will calculate the minimum monthly principal
expected to be paid to all Certificates (including the
Collateral Certificate) issued by the Master Trust.
(B) This calculation will be made by multiplying the
lowest of the monthly principal payment rates for principal
receivables in the Master Trust, in the case of a Single
Issuance Series, during the eleven months, and in the case of a
Multiple Issuance Series, during the twelve months, preceding
the date of calculation by the initial invested amounts of all
Master Trust Certificates (other than Certificates representing
Excluded Master Trust Series or series that are partially
Excluded Master Trust Series, to the extent of such exclusion.
63
(C) Using the minimum monthly principal amount expected to
be paid for principal receivables in the Master Trust, the
Issuer will next compare that amount to the invested amounts of
all Master Trust Certificates (including the Collateral
Certificate, but excluding any Certificates representing
Excluded Master Trust Series or series that are partially
Excluded Master Trust Series, to the extent of such exclusion)
with their expected maturity dates and the Outstanding Dollar
Principal Amounts of all tranches of Notes with Expected
Principal Payment Dates in the eleven or twelve, as applicable,
Due Periods preceding the Expected Principal Payment Date of
the tranche of Class A Notes for which the calculation is being
performed. If the comparison reveals that the date of the
targeted deposits can be postponed for that tranche of Class A
Notes (with a corresponding increase in the amount of each
deposit targeted) and the Issuer expects to receive Principal
Collections adequate to repay that tranche of Class A Note in
full on its Expected Principal Payment Date, then the Issuer
may designate a later Due Period (and correspondingly increased
Controlled Amortization Amount) with respect to which deposits
to the Principal Funding sub-Account for that tranche of Class
A Notes will begin. The comparison made will assume that the
dates required for collection of Principal Collections are
postponed to the maximum extent permitted by all Master Trust
Certificates and tranches of Notes.
(c) Prefunding of the Principal Funding Account of senior classes.
If the Issuer determines that any Expected Principal Payment Date, Event
of Default, Early Redemption Even or any other mandatory or optional
redemption with respect to any tranche of Class C Notes will occur at a
time when the Issuer anticipates that Section 515 or 516 would otherwise
prohibit the payment of all or part of such tranche of Class C Notes, the
Principal Finding sub-Account for the Class A Notes and/or the Class B
Notes of that series, as the case may be, will be prefunded with an
amount equal to the Outstanding Dollar Principal Amount of the Class A
Notes and Class B Notes that would be affected by the deficiency in the
subordinated amount so as to permit the payment of that tranche of Class
C Notes. If the Issuer determines that any Expected Principal Payment
Date, Early Redemption Event or Event of Default with respect to any
tranche of Class B Notes will occur at a time when the Issuer anticipates
that Section 515 or 516
64
would otherwise prohibit the payment of all or part of such tranche of
Class B Notes, the Principal Finding sub-Account for the Class A Notes of
that series will be prefunded with an amount equal to the Outstanding
Dollar Principal Amount of the Class A Notes that would be affected by
the deficiency in the subordinated amount so as to permit the payment of
that tranche of Class C Notes.
(d) Event of Default or Early Redemption Event. If the maturity of
any tranche of Notes has been accelerated after the occurrence of an
Event of Default during such Due Period or if any tranche of Notes is
required to be redeemed following an Early Redemption Event or any other
mandatory or optional redemption during such Due Period, the deposit
targeted for that tranche of Notes with respect to such Due Period is
equal to Nominal Liquidation Amount of that tranche of Notes. Subject to
Section 521, these deposits will be made on the Monthly Principal Date.
SECTION 509. Payments Received from Derivative Counterparties for
Principal; Other Deposits to Principal Funding Accounts. The following
additional amounts will be deposited into the Principal Funding Account on the
following dates:
(a) Payments Received from Derivative Counterparties. Payments
received under Derivative Agreements for principal in Dollars will be
deposited into the applicable Interest Funding sub-Account. Payments
received under Derivative Agreements for principal in foreign currencies
will be made directly to the applicable Paying Agent for payment to the
Holders of the applicable tranche, or as otherwise specified in the
applicable Derivative Agreement.
(b) Class C Reserve Account. Withdrawals made from any Class C
Reserve sub- Account pursuant to Section 518(b) will be deposited into
the applicable Principal Funding sub-Account on the date specified in
Section 518(b).
(c) Proceeds of Sale of Credit Card Receivables. The net proceeds of
the sale of credit card receivables received by the Issuer with respect
to any tranche of Notes pursuant to Sections 522 and 708 will be
deposited directly into the applicable Principal Funding sub-Account on
the date of receipt.
SECTION 510. Allocation to Principal Funding sub-Accounts. The aggregate
amount
65
of the deposits to be made to the Principal Funding Account pursuant to
Section 508 for each Due Period will be allocated, and a portion deposited in
the Principal Funding sub-Account for each tranche of Notes, as follows:
(a) Available Amounts Equal to Targeted Amount. If the aggregate
deposit to the Principal Funding Account is equal to the sum of the
deposits targeted by each tranche of Notes, then that required amount is
deposited in the Principal Funding sub-Account established for each
tranche.
(b) Available Amounts Are Less Than Targeted Amounts. (i) If the
amount on deposit in any Principal Funding sub-Account for a tranche of
Class A Notes of a series is less than the sum of the deposits targeted
with respect to such tranche, then amounts on deposit in Principal
Funding sub-Accounts established for Class B Notes and Class C Notes for
that series will be applied to make the payment (to be made first from
the Class C Principal Funding sub-Account in that series and second from
Class B Principal Funding sub-Account in that series). If more than one
tranche of Class A Notes needs to use amounts on deposit in the Principal
Funding sub-Account of the Class B Notes and the Class C Notes, then
withdrawals will be allocated pro rata based on the Nominal Liquidation
Amount of the tranches of Class A Notes that require funding.
(ii) If the applicable amount on deposit in any Principal Funding
sub-Account for a tranche of Class B Notes of a series is less than the
sum of the deposits targeted with respect to such tranche, then amounts
on deposit in Principal Funding sub-Account established for Class C Notes
will be applied to make the payment. If more than one tranche of Class B
Notes needs to use amounts on deposit in the Principal Funding sub-
Account of the Class C Notes, then withdrawals will be allocated pro rata
based on the Nominal Liquidation Amount of the tranches of Class B Notes
that require funding.
(c) Other Funds Not Reallocated. Funds deposited into any Principal
Funding sub-Account pursuant to Section 509(b) will not be reallocated to
any other Principal Funding sub-Account.
SECTION 511. Withdrawals from Principal Funding Account. Withdrawals made
pursuant to this Section with respect to any tranche will be made from the
Principal Funding sub-Accounts established for that
66
tranche only after all allocations and reallocations have been made pursuant
to Sections 508, 509 and 510, and reallocated on the same basis until such
funds are fully applied.
(a) Withdrawals for Dollar Notes. On each applicable Principal
Payment Date (or as much earlier as specified in the applicable terms
document) with respect to each tranche of Dollar Notes which has no
Derivative Agreement for principal, an amount equal to the lesser of (i)
principal due on the applicable tranche of Notes on the applicable
Principal Payment Date, and (ii) the amount on deposit in the applicable
Principal Funding sub-Account will be withdrawn from such Principal
Funding sub- Account and remitted to the applicable Paying Agent(s).
(b) Withdrawals for Notes with Performing Derivative Agreements for
Principal. On each date on which a payment is required under the
applicable Derivative Agreement (or as much earlier as specified in the
applicable terms document) with respect to any tranche of Notes which has
a Performing Derivative Agreement for principal, an amount equal to the
lesser of (i) the amount of the payment to be made under the applicable
Derivative Agreement, and (ii) the amount on deposit in the applicable
Principal Funding sub-Account will be withdrawn from such Principal
Funding sub-Account and paid to the applicable Derivative Counterparty.
The Issuer will direct the applicable Derivative Counterparty to remit
its payments under the applicable Derivative Agreement for the applicable
Paying Agent(s).
(c) Withdrawals for tranches of Foreign Currency Notes with
non-Performing Derivative Agreements for Principal. On each Principal
Payment Date with respect to a tranche of foreign currency Notes that has
a non-Performing Derivative Agreement for principal (or as much earlier
as specified in the applicable terms document), an amount equal to the
lesser of (i) the amount of Dollars necessary to be converted at the
applicable Spot Exchange Rate to pay the foreign currency principal due
on such tranche of Notes on the applicable Principal Payment Date, and
(ii) the amount on deposit in the applicable Principal Funding
sub-Account will be withdrawn from such sub-Account and converted to the
applicable foreign currency at the Spot Exchange Rate and remitted to the
applicable Paying Agent(s). Any excess Dollar amount will be retained on
deposit in the applicable Principal Funding sub-Account to be applied to
make principal payments on later Principal Payment Dates, or paid to the
Issuer when the principal amount of the applicable Note is paid in full.
67
(d) Withdrawal of Prefunded Amount. If a later issuance of a tranche
of Class B Notes or Class C Notes restores the Required Subordinated
Amount of a senior class of Notes of any series, prefunding deposits made
pursuant to Section 508(c) in the Principal Funding account of a senior
class may immediately be withdrawn from the Principal Funding Account and
reinvested in the Collateral Certificate pursuant to Section 519.
(e) Payment to Issuer. Upon payment in full of any tranche of Notes,
any remaining amount on deposit in the applicable Principal Funding
sub-Account will be paid to the Issuer.
SECTION 512. Limit on Reallocations of Principal Collections Taken to
Benefit Senior Classes of Single Issuance Series. With respect to Single
Issuance Series for any Due Period, the aggregate amount of Principal
Collections reallocated pursuant to Section 502(a) will be subject to the
following limitations:
(a) With respect to any tranche of a Class A Notes of a Single
Issuance Series, the aggregate amount of:
(i) the cumulative amount of all Principal Collections that
would have been applied to pay principal of Class C Notes of that
series, but were reallocated to pay interest on Class A Notes or
Class B Notes of that series; and
(ii) the cumulative amount of all reductions from allocations
of Investor Charge-Offs to the Nominal Liquidation Amount of the
Class C Notes of that series.
may not exceed the Class A Required Subordinated Amount of Class C Notes
for that series.
(b) With respect to any tranche of Class A Notes of a Single
Issuance Series, the aggregate amount of
(i) the cumulative amount of all Principal Collections that
would have been applied to pay principal of Class B Notes of that
series, but were reallocated
68
to pay interest on Class A Notes of that series; and
(ii) the cumulative amount of all reductions from allocations
of Investor Charge-Offs to the Nominal Liquidation Amount of the
Class B Notes of that series
may not exceed the Class A Required Subordinated Amount of Class B Notes
for that series.
(c) With respect to any tranche of a Class B Notes of a Single
Issuance Series, the aggregate amount of:
(i) (i) the cumulative amount of all Principal Collections that
would have been applied to pay principal of Class C Notes of that
series, but were reallocated to pay interest on Class A Notes of
that series; and
(ii) the cumulative amount of all reductions from allocations
of Investor Charge- Offs to the Nominal Liquidation Amount the Class
C Notes of that series;
may not exceed the Class B Required Subordinated Amount of Class C Notes
for that series.
SECTION 513. Limit on Reallocations of Principal Collections Taken to
Benefit Senior Classes in Multiple Issuance Series. With respect to Multiple
Issuance Series, for any Due Period, the Principal Collections reallocated
pursuant to Section 502(a) to make deposits and payments pursuant to Section
503 or 508 will be subject to the following limitations:
(a) Limit on Reallocations to a tranche of Class A Notes from Class
C Notes. The aggregate amount of Principal Collections which are applied
with respect to any Due Period pursuant to Section 502(a) to make
deposits with respect to any tranche of Class A Notes of a series which
would otherwise have been allocated to the Class C Notes of that series
pursuant to Section 503 may be made only to the extent, after giving
effect to such deposits, the sum of:
69
(i) the cumulative amount of all funds reallocated pursuant to
Section 502(a) and deposited into the Interest Funding sub-Account
for such tranche of Class A Notes with respect to prior Due Periods
and such Due Period (other than reallocations which resulted in a
reduction of the Nominal Liquidation Amount of a tranche of Class B
Notes);
(ii) an amount equal to
all funds reallocated pursuant to
Section 502(a) and deposited into all funds reallocated pursuant to
the Interest Funding Sub-Account Section 502(a) and deposited into
for such tranche of Class A Notes the Interest Funding Sub-Account
of that series for prior for such tranche of Class A Notes
Due Periods and such Due Period of that series for prior
--------------------------------- x Due Periods and such Due Period
all funds allocated pursuant to (other than any reallocations
Section 502(a) and deposited into that resulted in the reduction of
the Interest Funding Sub-Account the Nominal Liquidation Amount of
for any Outstanding tranche of a tranche of Class C Notes)
Class A Notes of that series for
prior Due Periods and
such Due Period
(iii) the cumulative sum of all amounts computed as follows: on
each day while such tranche of Class A Notes is Outstanding when
there is a reduction in the Nominal Liquidation Amount of any
tranche of Class C Notes, an amount equal to:
Amount of all reductions in the
Class A Required Subordinated Nominal Liquidation Amount of
Amount of Class C Notes for this x Class C Notes of this series from
tranche of Class A Notes Investor Charge-Offs on such date
-----------------------------------
Outstanding Dollar Principal Amount
of all Class C Notes of this series
is not greater than the Class A Required Subordinated Amount of Class C
Notes for such tranche of Class A Notes.
(b) Limit on Reallocations to a tranche of Class A Notes from Class
B Notes. The aggregate amount of Principal Collections which are applied
with respect to any Due Period pursuant to Section 502(a) to make
deposits with respect to any tranche of Class A Notes of a series which
would otherwise have been allocated to the Class B Notes of
70
that series pursuant to Section 503 may be made only to the extent, after
giving effect to such deposits, the sum of:
(i) the cumulative amount of all funds reallocated pursuant to
Section 502(a) and deposited into the Interest Funding sub-Account
of for such tranche of Class A Notes with respect to prior Due
Periods and such Due Period (other than reallocations which resulted
in a reduction of the Nominal Liquidation Amount of a tranche of
Class C Notes);
(ii) the cumulative sum of all amounts computed as follows: on
each day while such tranche of Class A Notes is Outstanding when
there is a reduction in the Nominal Liquidation Amount of any
tranche of Class B Notes, an amount equal to:
Amount of all reductions in the
Class A Required Subordinated Nominal Liquidation Amount of
Amount of Class B Notes for this x Class B Notes of this series from
tranche of Class A Notes Investor Charge-Offs on such date
-----------------------------------
Outstanding Dollar Principal Amount
of all Class B Notes of this series
is not greater than the Class A Required Subordinated Amount of Class B
Notes for such tranche of Class A Notes.
(c) Limit on Reallocations to a tranche of Class B Notes from Class
C Notes. The aggregate amount of Principal Collections which are applied
with respect to any Due Period pursuant to Section 502(a) to make
deposits with respect to any tranche of Class B Notes which would
otherwise have been allocated to Class C Notes pursuant to Section 503
may be made only to the extent, after giving effect to such deposits, the
sum of
(i) the cumulative amount of all funds reallocated pursuant to
Section 502(a) and deposited into the Interest Funding sub-Account
of for such tranche of Class B Notes with respect to prior Due
Periods and such Due Period;
(ii) an amount equal to
71
all funds reallocated pursuant to
Section 502(a) and deposited into all funds reallocated pursuant to
the Interest Funding Sub-Account Section 502(a) and deposited into
for such tranche of Class B Notes the Interest Funding Sub-Account
of that series for prior for any Outstanding Tranche of
Due Periods and such Due Period Class A Notes of that series
--------------------------------- x for prior Due Periods and such
all funds allocated pursuant to Due Period
Section 502(a) and deposited into
the Interest Funding Sub-Account
for any Outstanding tranche of
Class B Notes of that series for
prior Due Periods and
such Due Period
(iii) the cumulative sum of all amounts computed as
follows: on each day while such tranche of Class B Notes is
Outstanding when there is a reduction in the Nominal
Liquidation Amount of any tranche of Class C Notes, an amount
equal to:
Amount of all reductions in the
Class B Required Subordinated Nominal Liquidation Amount of
Amount of Class C Notes for this x Class C Notes of this series from
tranche of Class A Notes Investor Charge-Offs on such date
-----------------------------------
Outstanding Dollar Principal Amount
of all Class C Notes of this series
is not greater than the Class B Required Subordinated Amount of Class C
Notes for such tranche of Class B Notes.
SECTION 514. Limit on Reallocations of Principal Collections Given to
Benefit Senior Classes in Multiple Issuance Series. With respect to Multiple
Issuance Series, the Principal Collections applied pursuant to Section 501 and
Section 502 to make deposits pursuant to Section 503 and Section 508 will be
allocated from each tranche of Class B Notes and Class C Notes based on the
amount of the targeted deposit for that tranche of Class B Notes or Class C
Notes as the case may be, but subject to the following limitations:
(a) The aggregate amount of Principal Collections which are
otherwise allocable to a tranche of Class B Notes which may reallocated
pursuant to Section 502(a) with respect to any Due Period may not exceed
the lesser of:
(i) the Outstanding Dollar Principal Amount of such tranche of
Class B
72
Notes, less (A) the amount of reductions in the Nominal Liquidation
Amount of such tranche of Class B Notes made since the date of
issuance of any Outstanding tranche of Class A Notes of such series
with respect to prior Due Periods, plus (B) reimbursements of
reductions in the Nominal Liquidation Amount of such tranche of
Class B Notes pursuant to clauses (iv) and (v) of the definition of
Nominal Liquidation Amount; provided, however, that portions of the
Nominal Liquidation Amount attributable to any such increases may
only be reallocated only to tranches of Notes of senior classes of
such series which were issued after the date of such reimbursement,
and
(ii) the Nominal Liquidation Amount of such tranche of Class B
Notes.
(b) The aggregate amount of Principal Collections which are
otherwise allocable to a tranche of Class C Notes which may reallocated
pursuant to Section 502(a) with respect to any Due Period may not exceed
the lesser of:
(i) the Outstanding Dollar Principal Amount of such tranche of
Class C Notes, less (A) the amount of reductions in the Nominal
Liquidation Amount of such tranche of Class C Notes made since the
date of issuance of any Outstanding tranche of Class A Notes of such
series with respect to prior Due Periods, plus (B) reimbursements of
reductions in the Nominal Liquidation Amount of such tranche of
Class C Notes pursuant to clauses (iv) and (v) of the definition of
Nominal Liquidation Amount; provided, however, that portions of the
Nominal Liquidation Amount attributable to any such increases may
only be reallocated only to tranches of Notes of senior classes of
such series which were issued after the date of such reimbursement,
and
(ii) the Nominal Liquidation Amount of such tranche of Class C
Notes.
SECTION 515. Limit on Repayments of Subordinated Classes of Single
Issuance Series. Subject to Sections 508(c) and 518(b), with respect to Single
Issuance Series,
(a) no payment of principal will be made on any Class B Note (and no
Class B Note will be canceled pursuant to Section 603) unless,
immediately before giving effect to such payment (or cancelation), no
Class A Notes of such series are Outstanding,
73
except to the extent that reductions in the Nominal Liquidation Amount of
Class B Notes of that series have been reimbursed pursuant to clause
(b)(v) of the definition of "Nominal Liquidation Amount", and
(b) no payment of principal will be made on any Class C Note (and no
Class C Note will be canceled pursuant to Section 603) unless,
immediately before giving effect to such payment (or cancelation), no
Class A Notes or Class B Notes of such series are Outstanding, except to
the extent that reductions in the Nominal Liquidation Amount of Class C
Notes of that series have been reimbursed pursuant to clause (b)(v) of
the definition of "Nominal Liquidation Amount".
SECTION 516. Limit on Repayments of Subordinated Classes of Multiple
Issuance Series. With respect to Multiple Issuance Series, and subject to
Section 508(c) and Section 518(b), no payments of principal of Notes of any
subordinated class of a series (or cancellations of Notes of a subordinated
class of a series pursuant to Section 603) may be made unless the following
conditions are satisfied:
(a) no payment of principal will be made on any Class B Note (and no
Class B Note will be canceled pursuant to Section 603) unless, following
such payment (or cancelation), the available subordinated amount of Class
B Notes is at least equal to the Required Subordinated Amount of Class B
Notes for the Outstanding Class A Notes. For this purpose, the available
subordinated amount of Class B Notes is equal to the sum of:
(i) the aggregate amount of all Nominal Liquidation Amounts of
all other Class B Notes of that series which are Outstanding after
giving effect to the repayment (or cancelation) of such tranche of
Class B Notes (and all other Class B Notes which are to be repaid
(or canceled) with respect to such Due Period),
plus
(ii) the cumulative amount of all funds reallocated to pay
interest on Outstanding tranches of Class A Notes with respect to
prior Due Periods and the current Due Period (other than
reallocations which resulted in the reduction of the Nominal
Liquidation Amount of tranches of Class C Notes, or the Nominal
Liquidation Amount of tranches of Class B Notes which are no longer
74
Outstanding).
(b) no payment of principal will be made on any Class C Note (and no
Class C Note will be canceled pursuant to Section 603) unless, following
such payment (or cancelation), the available subordinated amount of Class
C Notes is at least equal to the Required Subordinated Amount of Class C
Notes for the Outstanding Class A Notes. For this purpose, the available
subordinated amount of Class C Notes is equal to the sum of:
(i) the aggregate amount of all Nominal Liquidation Amounts of
all other Class C Notes of that series which are Outstanding after
giving effect to the repayment (or cancelation) of such tranche of
Class C Notes (and all other Class C Notes which are to be repaid
(or canceled) with respect to such Due Period),
plus
(ii) the cumulative amount of all funds reallocated to pay
interest on Outstanding tranches of Class A Notes with respect to
prior Due Periods and the current Due Period (other than
reallocations which resulted in the reduction of the Nominal
Liquidation Amount of tranches of Class B Notes, or the Nominal
Liquidation Amount of tranches of Class C Notes which are no longer
Outstanding);
plus
(iii) the cumulative amount of all funds reallocated to pay
interest on Outstanding Class B Notes of that Series since that
tranche of Class C Notes was issued and for the current Due Period
(other than reallocations which resulted in the reduction of the
Nominal Liquidation Amount of tranches of Class C Notes which are no
longer Outstanding).
(c) no payment of principal will be made on any Class C Note (and no
Class C Note will be canceled pursuant to Section 603) unless, following
such payment (or cancelation), the available subordinated amount of Class
C Notes is at least equal to the Required Subordinated Amount of Class C
Notes for the Outstanding Class B Notes. For this purpose, the available
subordinated amount of Class C Notes is equal to the sum of:
75
(i) the aggregate amount of all Nominal Liquidation Amounts of
all other Class C Notes of that series which are Outstanding after
giving effect to the repayment (or cancelation) of such tranche of
Class C Notes (and all other Class C Notes which are to be repaid
(or canceled) with respect to such Due Period),
plus
(ii) the cumulative amount of all funds reallocated to pay
interest on Outstanding tranches of Class A Notes with respect to
prior Due Periods and the current Due Period (other than
reallocations which resulted in the reduction of the Nominal
Liquidation Amount of tranches of Class C Notes which are no longer
Outstanding);
plus
(iii) the cumulative amount of all funds reallocated to pay
interest on Outstanding Class B Notes of that Series since that
tranche of Class C Notes was issued and for the current Due Period
(other than reallocations which resulted in the reduction of the
Nominal Liquidation Amount of tranches of Class B Notes, or the
Nominal Liquidation Amount of tranches of Class C Notes which are no
longer Outstanding).
SECTION 517. Targeted Deposits to the Class C Reserve Account. (a) The
aggregate deposit targeted to be made to the Class C Reserve Account with
respect to each Due Period is an amount equal to the sum of Class C Reserve
Account deposits targeted to be made for each tranche of Class C Notes. The
amount of any such deposit and the circumstances that require such a deposit
to be made will be set forth in the terms document for such tranche of Class C
Notes. Unless another time is specified for making such deposits in the terms
document for tranche of Class C Notes, these deposits will be made on each
applicable Monthly Interest Date.
(b) If the aggregate amount available to be deposited into the Class C
Reserve Account with respect to any Due Period is less than the sum of the
deposits targeted by each tranche of Class C Notes for that Due Period, then
the aggregate deposit will be allocated to each series pro rata based on the
amounts of the targeted deposits for that Due Period, plus any targeted
deposits from earlier Due Periods that were not made.
76
SECTION 518. Withdrawals from the Class C Reserve Account. Withdrawals
made pursuant to this Section with respect to any tranche will be made from
the Class C Reserve sub- Accounts established for that tranche of Class C
Notes only after all allocations and reallocations have been made pursuant to
Sections 501, 502, 503, 505, 508 and 510.
(a) Interest; Payments with Respect to Derivative Agreements for
Interest, Accretion on Discount Notes. If the amount on deposit in the
Interest Funding sub- Account for any tranche of Class C Notes is
insufficient to pay in full the amounts for which withdrawals are made
under Section 507(a), (b), (c), (d) or (e), on each date specified in
such Section, an amount equal to the lesser of (i) such deficiency, and
(ii) the amount on deposit in the applicable Class C Reserve sub-Account
will be withdrawn from such Class C Reserve sub-Account and applied to
such deficiency.
(b) Principal; Payments with Respect to Derivative Agreements for
Principal. If the amount on deposit in the Principal Funding sub-Account
for any tranche of Class C Notes is insufficient to pay in full the
amounts for which withdrawals are made under Section 511(a), (b), (c) or
(d), on the Legal Maturity Date for such tranche of Notes, an amount
equal to the least of (i) such deficiency, and (ii) the amount on deposit
in the applicable Class C Reserve sub-Account, and (iii) the amount by
which the Nominal Liquidation Amount of such tranche of Class C Notes is
less than the Adjusted Outstanding Dollar Principal Amount of such
tranche of Class C Notes will be withdrawn from such Class C Reserve
sub-Account and applied to such deficiency.
(c) Payment to Issuer. Upon payment in full of any tranche of Class
C Notes, any amount on deposit in the applicable Class C Reserve
sub-Account will be paid to the Issuer.
SECTION 519. Reinvestment in the Collateral Certificate. (a) The amount
of accreted interest on a Discount Note pursuant to Section 503(g) is required
to be reinvested in the Collateral Certificate.
(b) If the Principal Funding sub-Account of a tranche of Notes is
prefunded pursuant to Section 508(c) and such prefunded amount is released,
then the equivalent of such amount is required to be reinvested.
77
(c) If the aggregate Adjusted Outstanding Dollar Principal Amount of all
tranches of Notes as of the last day of any Due Period (after giving effect to
any deposit, reallocation or payment pursuant to Sections 502(a) with respect
to such Due Period) exceeds the Invested Amount of the Collateral Certificate
on that date, the amount of Finance Charge Collections targeted to be
reinvested in the Collateral Certificate pursuant to Section 501(d) is equal
to the amount of that excess.
SECTION 520. Final Payment. If the Nominal Liquidation Amount of a
tranche of Notes is zero on its Legal Maturity Date (after giving effect to
all deposits, allocations, payments and sales of credit card receivables to be
made on that day), then the Holders of such tranche of Notes will have no
further right or claim, and the Issuer will have no further obligation or
liability, with respect to such Notes.
SECTION 521. Timing of Deposits. So long as the Master Trust is permitted
to make payments to the Issuer under Section 4.02(a) and Section 4.02(b) of
the Series [ ]-00 Supplement on the applicable Interest Deposit Date or
Principal Deposit Date (rather than on thelast day of the applicable Due
Period), the amounts received by the Issuer pursuant to Section 4.02(a) and
Section 4.02(b) of the Series [ ]-00 Supplement will be allocated to and
deposited into each applicable sub-Accounts on the applicable Interest Deposit
Date or Principal Deposit Date. Otherwise, the funds received by the Issuer
pursuant to Section 4.02(a) and Section 4.02(b) of the Series [ ]-00
Supplement will be allocated to and deposited into each applicable sub-Account
on the last day of the applicable Due Period, or as soon thereafter as
practicable.
SECTION 522. Sale of Credit Card Receivables on Legal Maturity Date. If
the Nominal Liquidation Amount with respect to any tranche of Notes is greater
than zero on its Legal Maturity Date (after giving effect to deposits and
distributions otherwise to be made on such Legal Maturity Date), the Issuer
will cause the Master Trust to sell on such Legal Maturity Date Principal
Receivables under the Master Trust and the related Finance Charge Receivables
(or interests therein) in an amount equal to 110% of the Nominal Liquidation
Amount of such tranche of Notes on such Legal Maturity Date (after giving
effect to such deposits and distributions), but in no case will such amount of
Principal Receivables and Finance Charge Receivables exceed the following
amount:
78
the Nominal Liquidation Amount
of the tranche of Notes that has
reached its Legal Maturity Date as Series Adjusted Invested the amount of Receivables
of the last Due Period before x Amount(as defined in the Series x (as defined in the Series [ ]
budgeted deposits to its Principal [ ] Supplement) of the Collateral Supplement) in the Master
Funding sub-Account began Certificate Trust
pursuant to Section 508(b)(ii)(C)
----------------------------------
The Series Adjusted Invested
Amount as defined in the Series [
]-00 Supplement
Such proceeds from such sale will be immediately deposited into the Principal
Funding sub-Account for such tranche.
SECTION 523. Netting of Deposits and Payments. The Issuer, in its sole
discretion, may make all deposits to Interest Funding sub-Accounts and
Principal Funding sub-Accounts pursuant to Sections 503 and 507 with respect
to any Due Period net of, and after giving effect to, (a) all reallocations to
be made pursuant to Sections 502(a), (b) all payments to be made to Derivative
Counterparties pursuant to Sections 507 and 511, and (c) all reinvestments in
the Collateral Certificate to be made pursuant to Sections 519.
SECTION 524. Pro Rata Payments within a Tranche. All payments of
principal, interest or other amounts to Holders of the Notes of a single
tranche will be made pro rata based on the stated principal amount of their
Notes.
ARTICLE VI
Satisfaction and Discharge; Cancelation of Notes
Held by the Issuer or the Banks
SECTION 601. Satisfaction and Discharge of Indenture. This Indenture will
cease to be of further effect with respect to any series, class or tranche of
Notes (except as to any surviving rights of transfer or exchange of Notes of
such series, class or tranche expressly provided for herein or in the form of
Note for such series, class or tranche), and the Trustee, on demand of and at
the expense of the Issuer, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, class or
tranche, when:
79
(a) all Notes of that series, class or tranche theretofore
authenticated and delivered (other than (A) Notes of such series, class
or tranche which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (B) Notes of such
series, class or tranche for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 1103) have been delivered to the Trustee canceled or
for cancelation;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder (including payments to the Trustee pursuant to SECTION 807) by
the Issuer with respect to the Notes of such series, class or tranche;
and
(c) the Issuer has delivered to the Trustee an Issuer's Certificate
and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Notes of such series, class or tranche have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect
to any series, class or tranche of Notes, the obligations of the Issuer to the
Trustee with respect to that series, class or tranche under Section 807 will
survive and the obligations of the Trustee under Sections 602 and 1103 will
survive.
SECTION 602. Application of Trust Money. All money and obligations
deposited with the Trustee pursuant to Section 601 or Section 603 and all
money received by the Trustee in respect of such obligations will be held in
trust and applied by it, in accordance with the provisions of the series,
class or tranche of Notes in respect of which it was deposited and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money and obligations have been deposited with or received
by the Trustee; but such money and obligations need not be segregated from
other funds except to the extent required by law.
SECTION 603. Cancelation of Notes Held by the Issuer or the Banks. If the
Issuer, the Banks or any of their Affiliates holds any Notes, such Holder may,
subject to Section 515 and 516, by notice from such Holder to the Trustee
cause such Note to be canceled, whereupon
80
(a) such Note will no longer be Outstanding, and (b) the Issuer will cause the
Invested Amount of the Collateral Certificate to be reduced by an amount equal
to the Nominal Liquidation Amount of such Notes.
ARTICLE VII
Remedies
SECTION 701. Events of Default. "Event of Default", wherever used herein,
means with respect to any series, class or tranche of Notes any one of the
following events (whatever the reason for such Event of Default and whether it
will be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
either inapplicable to a particular series, class or tranche or it is
specifically deleted or modified in the applicable terms document creating
such series, class or tranche of Notes or in the form of Note for such series,
class or tranche:
(a) default in the payment of any interest upon any Note of that
series, class or tranche when it becomes due and payable, and continuance
of such default for a period of five Business Days;
(b) default in the payment of the principal of any Note of that
series, class or tranche at its Legal Maturity Date;
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of such
series, class or tranche (other than a covenant or warranty in respect of
the Notes of such series, class or tranche a default in the performance
of which or the breach of which is elsewhere in this SECTION specifically
dealt with), all of such covenants and warranties in the Indenture which
are not expressly stated to be for the benefit of a particular series,
class or tranches of Notes being deemed to be in respect of the Notes of
all series, classes or tranche for this purpose, and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 10% in Outstanding
Dollar Principal Amount of the
81
Outstanding Notes of such series, class or tranche, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(d) the Issuer becomes an investment company within the meaning of
the Investment Company Act;
(e) the entry of an order for relief against the Issuer under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or
a decree or order by a court having jurisdiction in the premises
adjudging the Issuer a bankrupt or insolvent under any other applicable
Federal or State law, or the entry of a decree or order approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Issuer under the Federal
Bankruptcy Code or any other applicable Federal or State law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Issuer or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days;
(f) the consent by the Issuer to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Issuer in
furtherance of any such action; or
(g) any other Event of Default provided in the supplemental
indenture under which such series, class or tranche of Notes is issued or
in the form of Note for such series, class or tranche.
SECTION 702. Acceleration of Maturity; Rescission and Annulment. (a) If
an Event of Default described in paragraph (a), (b), (c) or (g) (if the Event
of Default under paragraph (c) or (g) is with respect to less than all series,
classes or tranches of Notes then Outstanding) of
82
Section 701 occurs and is continuing with respect to any series, class or
tranche, then and in each and every such case, unless the principal of all the
Notes of such series, class or tranche will have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
Outstanding Dollar Principal Amount of the Notes of such series, class or
tranche then Outstanding hereunder (each such series, class or tranche acting
as a separate class), by notice in writing to the Issuer (and to the Trustee
if given by Holders), may declare the Outstanding principal amount of all the
Notes of such series, class or tranche then Outstanding and all accrued or
accreted and unpaid interest (if any) thereon to be due and payable
immediately, and upon any such declaration the same will become and will be
immediately due and payable, anything in this Indenture or in the Notes of
such series, class or tranche contained to the contrary notwithstanding.
(b) If an Event of Default described in paragraph (c) or (g) (if the
Event of Default under paragraph (c) or (g) is with respect to all series,
classes or tranches of Notes then Outstanding) of Section 701 occurs and is
continuing, then and in each and every such case, unless the principal of all
the Notes will have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate Outstanding Dollar Principal Amount
of all the Notes then Outstanding hereunder (treated as one class), by notice
in writing to the Issuer (and to the Trustee if given by Holders), may declare
the Outstanding Dollar Principal Amount of all the Notes then Outstanding and
all accrued or accreted and unpaid interest (if any) thereon to be due and
payable immediately, and upon any such declaration the same will become and
will be immediately due and payable, anything in this Indenture or in the
Notes contained to the contrary notwithstanding.
(c) If an Event of Default described in paragraph (e) or (f) of Section
701 occurs and is continuing, then the Notes will automatically be and become
immediately due and payable by the Issuer, without notice, or demand to any
Person and the Issuer will automatically and immediately be obligated to pay
off the Notes.
At any time after such a declaration of acceleration has been made with
respect to the Notes of any series, class or tranche and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in Outstanding
Dollar Principal Amount of the Outstanding Notes of such series, classes or
tranche, by written notice to the Issuer and the Trustee, may rescind and
annul such declaration and its consequences if:
83
(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue installments of interest on the Notes of such
series, classes or tranches,
(ii) the principal of any Notes of such series, classes or
tranche which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Notes of such series, classes or
tranche, to the extent that payment of such interest is lawful,
(iii) interest upon overdue installments of interest at the
rate or rates prescribed therefor by the terms of the Notes of such
series, classes or tranches to the extent that payment of such
interest is lawful, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the
Trustee under Section 807;
and
(b) all Events of Default with respect to such series, classes or
tranches of Notes, other than the nonpayment of the principal of the
Notes of such series, classes or tranches which have become due solely by
such acceleration, have been cured or waived as provided in Section 718.
No such rescission will affect any subsequent default or impair any right
consequent thereon.
SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of any installment of
interest on any series, class or tranche of Note when such interest
becomes due and payable, or
(b) the Issuer defaults in the payment of the principal of any
series, class or tranche of Note at the Legal Maturity Date thereof, or
84
(c) with respect to any series, class or tranche that benefits from
a Derivative Agreement to which the Issuer is a party, the Issuer
defaults in any of its obligations under the applicable Derivative
Agreement,
and any such default continues for any period of grace provided with respect
to such series, class or tranche of Notes, the Issuer will, upon demand of the
Trustee, pay to it, for the benefit of the Holder of any such Note the whole
amount then due and payable on any such Note for principal and interest
(subject to Article V and Section 708), with interest, to the extent that
payment of such interest will be legally enforceable, upon the overdue
principal and upon overdue installments of interest, at such rate or rates as
may be prescribed therefor by the terms of any such Note; and, in addition
thereto, such further amount as will be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all
other amounts due the Trustee under Section 807.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Issuer or any other obligor upon the Notes of such series,
class or tranche and collect the money adjudged or decreed to be payable in
the manner provided by law out of the Collateral or any other obligor upon
such Notes, wherever situated.
SECTION 704. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor upon the Notes or the property of the Issuer
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Notes will then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee will have made any demand on the Issuer for the payment of overdue
principal or interest) will be entitled and empowered, by intervention in such
proceedings or otherwise,
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary and advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
85
its agents and counsel and all other amounts due the Trustee under
Section 807) and of the Noteholders allowed in such judicial proceeding,
and
(ii) to collect and receive any funds or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Noteholder to make such payment to the Trustee and in the event that the
Trustee will consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 807.
Nothing herein contained will be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Noteholder in any such proceeding.
SECTION 705. Trustee May Enforce Claims Without Possession of Notes. All
rights of action and claims under this Indenture or the Notes of any series,
class or tranche may be prosecuted and enforced by the Trustee without the
possession of any of the Notes of such series, class or tranche or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee will be brought in its own name as trustee of an
express trust, and any recovery of judgment will, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agent and counsel, be for the ratable benefit of the
Holders of the Notes of the series, class or tranche in respect of which such
judgment has been recovered.
SECTION 706. Application of Money Collected. Any money or other property
collected by the Trustee with respect to a series, class or tranche of Notes
pursuant to this Article will be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal or interest, upon presentation of the Notes of such
series, class or tranche and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
86
(a) first, to the payment of all amounts due the Trustee under
Section 807.
(b) second, to the payment of the amounts then due and unpaid upon
the Notes of that series, class or tranche for principal and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind (but
subject to the allocation provided in Article V), according to the
amounts due and payable on such Notes for principal and interest,
respectively.
SECTION 707. Trustee May Elect to Hold the Collateral Certificate.
Following an acceleration of any class of Notes, the Trustee may elect to
continue to hold the Collateral Certificate and apply distributions on the
Collateral Certificate in accordance with the regular distribution provisions
pursuant to Article V of this Indenture, except that principal will be paid on
the accelerated class of Notes to the extent funds are received from the
Master Trust and allocated to the accelerated class, and payment is permitted
by the subordination provisions of the accelerated class.
SECTION 708. Sale of Credit Card Receivables for Accelerated Class C
Notes. (a) In the case of an accelerated tranche of Class C Notes, the Trustee
may, and at the direction of the majority of the Holders of such tranche,
cause the Master Trust to sell Principal Receivables under the Master Trust
and the related Finance Charge Receivables (or interests therein) in an amount
equal to 110% of the Nominal Liquidation Amount of the accelerated tranche,
but in no case will such amount of Principal Receivables and Finance Charge
Receivables exceed the following amount:
the Nominal Liquidation Amount Series Adjusted Invested the amount of Receivables
of the accelerated tranche of Class Amount(as defined in the Series (as defined in the Series [ ]
C Notes as of the end of the last x [ ] Supplement) of the Collateral x Supplement) in the Master
Due Period before acceleration Certificate Trust
-----------------------------------
The Series Adjusted Invested
amount as defined in the Series [
]-00 Supplement
(b) Such a sale will be permitted only if at least one of the
following conditions is met:
(i) 90% of the Holders of the accelerated tranche of Notes
consent; or
87
(ii) the proceeds of the sale would be sufficient to pay all
Outstanding amounts due on the accelerated tranche of Notes; or
(iii) the Trustee determines that the Finance Charge
Collections and Principal Collections allocable to the accelerated
tranche of Notes, payments to be received from any applicable
Derivative Agreement and amounts on deposit in the applicable sub-
Accounts will likely not be sufficient to make payments on the
accelerated tranche of Notes when due and 66-2/3% of the Holders of
the accelerated tranche of Notes consent to the sale.
(c) If the net proceeds of the sale of receivables would be less than the
remaining available subordinated amount which such accelerated tranche of
Notes provides to Outstanding senior classes of Notes of that series, the sale
will be delayed and a partial accumulation of Principal Collections in the
Principal Funding Account for the senior classes of Notes will occur. The sale
of receivables will not occur until the proceeds from the sale will be
sufficient to provide the Required Subordinated Amount of senior classes of
Notes for the Outstanding Dollar Principal Amount of senior classes of Notes
which are not covered by cash on deposit in the Principal Funding Account.
(d) When the sale of receivables occurs, the proceeds will be retained in
the Class C Principal Funding Account to the extent and for so long as they
are required to provide the Required Subordinated Amount for the Outstanding
senior classes of Notes. Accumulation of Principal Collections in the
Principal Funding Account for the senior classes of Notes will begin and will
continue as long as necessary to permit funds in the Principal Funding Account
to be released to the Holders of such accelerated tranche of Notes.
SECTION 709. Noteholders Have the Right to Direct the Time, Method and
Place of Conducting Any Proceeding for Any Remedy Available to the Trustee.
The Holders of a majority in aggregate Outstanding Dollar Principal Amount of
any accelerated class of Notes have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee. This right may be
exercised only if the direction provided by the Noteholders does not conflict
with applicable law or this Indenture or have a substantial likelihood of
involving the Trustee in personal liability.
88
SECTION 710. Limitation on Suits. No Holder of any Note of any series,
class or tranche will have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to Notes of such series,
class or tranche;
(b) the Holders of not less than 25% in Outstanding Dollar Principal
Amount of the Outstanding Notes of such series, class or tranche will
have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in Outstanding Dollar Principal Amount of the Outstanding Notes
of such series, class or tranche;
it being understood and intended that no one or more Holders of Notes of such
series, class or tranche will have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Notes of such series, class or
tranche, or to obtain or to seek to obtain priority or preference over any
other such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and proportionate benefit of all the
Holders of all Notes of such series, class or tranche.
SECTION 711. Unconditional Right of Noteholders to Receive Principal and
Interest; Limited Recourse. Notwithstanding any other provisions in this
Indenture, the Holder of any
89
Note will have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note on the respective Legal
Maturity Dates expressed in such Note and to institute suit for the
enforcement of any such payment, and such right will not be impaired without
the consent of such Holder; provided, however, that notwithstanding any other
provision of this Indenture to the contrary, the obligation to pay principal
of or interest on the Notes or any other amount payable to any Noteholder will
be without recourse to the Issuer (except as aforesaid), the Banks, the
Trustee or any affiliate, officer, employee or director of any of them, and
the obligation to pay principal of or interest on the Notes or any other
amount payable to any Noteholder will be subject to Article V and Section 708.
SECTION 712. Restoration of Rights and Remedies. If the Trustee or any
Noteholder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, then and in every such case the Issuer, the Trustee and the
Noteholders will, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Noteholders will continue as
though no such proceeding had been instituted.
SECTION 713. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Noteholders is intended to
be exclusive of any other right or remedy, and every right and remedy will, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, will not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 714. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default will impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Noteholders, as the case may be.
SECTION 715. Control by Noteholders. The Holders of a majority in
Outstanding Dollar Principal Amount of the Outstanding Notes of any series,
class or tranche will have the
90
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Notes of such series, class or tranche,
provided that:
(a) the Trustee will have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith will, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in
such direction, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 716. Waiver of Past Defaults. The Holders of not less than a
majority in Outstanding Dollar Principal Amount of the Outstanding Notes of
any series, class or tranche may on behalf of the Holders of all the Notes of
such series, class or tranche waive any past default hereunder with respect to
such series, class or tranche and its consequences, except a default not
theretofore cured:
(a) in the payment of the principal of or interest on any Note of
such series, class or tranche, or
(b) in respect of a covenant or provision hereof which under Article
X cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such series, class or tranche.
Upon any such waiver, such default will cease to exist, and any Event of
Default arising therefrom will be deemed to have been cured, for every purpose
of this Indenture; but no such waiver will extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 717. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by his acceptance thereof will be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
91
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section will
not apply to any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than 10% in
Outstanding Dollar Principal Amount of the Outstanding Notes of any series,
class or tranche to which the suit relates, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of or interest
on any Note on or after the respective Legal Maturity Dates expressed in such
Note.
SECTION 718. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE VIII
The Trustee
SECTION 801. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default with respect to any series, class or
tranche of Notes,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to
the Notes of such series, classes or tranche, and no implied covenants or
obligations will be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may, with
respect to Notes of such series, classes or tranche, conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished
92
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee will be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series, class or
tranche of Notes has occurred and is continuing, the Trustee will exercise
with respect to the Notes of such series, class or tranche such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a fiduciary would exercise or use under the
circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture will be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) this Subsection will not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee will not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it will be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee will not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in Outstanding Dollar Principal
Amount of the Outstanding Notes of any series, class or tranche relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Notes of such
series, class or tranche;
(iv) no provision of this Indenture will require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it will have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it; and
93
(v) neither any Trustee nor the Banks, nor any other beneficiary of
the Issuer nor any of their respective officers, directors, employers or
agents will have any liability with respect to this Indenture, and
recourse may be had solely to the collateral pledged to secure the Notes
Issued by Citibank Credit Card Issuance Trust.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee will be subject to the provisions of this Section.
SECTION 802. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to Notes of any series, class or tranche,
the Trustee will transmit by mail to all Noteholders of such series, class or
tranche, as their names and addresses appear in the Note Register, notice of
such default hereunder known to the Trustee, unless such default will have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of or interest on any Note of such series,
class or tranche, the Trustee will be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
Noteholders of such series, class or tranche; and provided, further, that in
the case of any default of the character specified in Section 701(c) with
respect to Notes of such series, class or tranche no such notice to
Noteholders of such series, class or tranche will be given until at least 90
days after the occurrence thereof. For the purpose of this Section, the term
"default", with respect to Notes of any series, class or tranche, means any
event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Notes of such series, class or tranche.
SECTION 803. Certain Rights of Trustee. Except as otherwise provided in
Section 801:
(a) the Trustee may rely and will be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein will be
sufficiently evidenced by an Issuer Request or Issuer Order;
94
(c) whenever in the administration of this Indenture the Trustee will
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Issuer's Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel will be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee will be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Noteholders pursuant to this Indenture, unless such Noteholders will have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee will not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture
or other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee will determine to make such further inquiry or
investigation, it will be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee will not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee will not be responsible for filing any financing
statements or continuation statements in connection with the Notes.
SECTION 804. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee will not be accountable for the use or application by the
Issuer of Notes or
95
the proceeds thereof.
SECTION 805. May Hold Notes. The Trustee, any Paying Agent, the Note
Registrar or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections
808 and 813, may otherwise deal with the Issuer with the same rights it would
have if it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 806. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee will be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Issuer.
SECTION 807. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity. (a) The Issuer agrees, with funds available
pursuant to Section 501(a),
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation will not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Issuer under this
Section the Issuers and
96
the Noteholders agree that the Trustee will have a lien prior to the Notes
upon all property and funds held or collected by the Trustee as such pursuant
to Section 501 or 502, except funds held in the Principal Funding Account, the
Interest Funding Account or the Class C Reserve Account.
(b) The aggregate amount that the Issuer will be liable for with respect
to any of the amounts payable to or for the benefit of the Trustee pursuant to
this Section or Section 717 or otherwise will in no event be greater than
$____________ per month. The Trustee will have no recourse to any asset of the
Issuer other than funds available pursuant to Section 501(a) or to any Person
other than the Issuer.
(c) This Section will survive the termination of this Indenture and the
resignation or replacement of the Trustee under Section 810.
SECTION 808. Disqualification; Conflicting Interests. If the Trustee has
or will acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee will, if so required by the Trust Indenture Act,
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Indenture. Nothing herein will prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
SECTION 809. Corporate Trustee Required; Eligibility. There will at all
times be a Trustee hereunder with respect to each series, class or tranche of
Notes, which will be a corporation organized and doing business under the laws
of the United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation will be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Issuer may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Issuer, serve as
Trustee. If at any time the Trustee with respect to any series, class or
tranche of Notes will cease to be eligible in accordance with the provisions
of this Section, it will resign immediately in the manner and with the effect
hereinafter specified in this Article.
97
SECTION 810. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article will become effective until the acceptance of
appointment by the successor Trustee under Section 811.
(b) The Trustee may resign with respect to any series, class or tranche
of Notes at any time by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Trustee will not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series, class or
tranche of Notes at any time by Act of the Holders of a majority in
Outstanding Dollar Principal Amount of the Outstanding Notes of that series,
class or tranche, delivered to the Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee will fail to comply with Section 310(b) of the Trust
Indenture Act with respect to any series, class or tranche of Notes after
written request therefor by the Issuer or by any Noteholder who has been
a bona fide Holder of a Note of that series, class or tranche for at
least 6 months, or
(ii) the Trustee will cease to be eligible under Section 809 with
respect to any series, class or tranche of Notes and will fail to resign
after written request therefor by the Issuer or by any such Noteholder,
or
(iii) the Trustee will become incapable of acting with respect to
any series, class or tranche of Notes, or
(iv) the Trustee will be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property will be appointed or any
public officer will take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Issuer may remove the Trustee, with respect to
the series, class or
98
tranche, or in the case of clause (iv), with respect to all series, classes or
tranche, or (B) subject to Section 717, any Noteholder who has been a bona
fide Holder of a Note of such series, class or tranche for at least 6 months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the series, class or
tranche, or, in the case of clause (iv), with respect to all series, classes
or tranche.
(e) If the Trustee will resign, be removed or become incapable of acting
with respect to any series, class or tranche of Notes, or if a vacancy will
occur in the office of the Trustee with respect to any series, class or
tranche of Notes for any cause, the Issuer will promptly appoint a successor
Trustee for that series, class or tranche of Notes. If, within one year after
such resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series, class or tranche of Notes will
be appointed by Act of the Holders of a majority in Outstanding Dollar
Principal Amount of the Outstanding Notes of such series, class or tranche
delivered to the Issuer and the retiring Trustee, the successor Trustee so
appointed will, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to such series, class or tranche and supersede
the successor Trustee appointed by the Issuer with respect to such series,
class or tranche. If no successor Trustee with respect to such series, class
or tranche will have been so appointed by the Issuer or the Noteholders of
such series, class or tranche and accepted appointment in the manner
hereinafter provided, any Noteholder who has been a bona fide Holder of a Note
of that series, class or tranche for at least 6 months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series, class or tranche.
(f) The Issuer will give notice of each resignation and each removal of
the Trustee with respect to any series, class or tranche and each appointment
of a successor Trustee with respect to any series, class or tranche by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Notes of that series, class or tranche as their names and addresses
appear in the Note Register. Each notice will include the name of the
successor Trustee and the address of its principal Corporate Trust Office.
SECTION 811. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder will execute, acknowledge and deliver to the
Issuer and to the predecessor Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of
99
the predecessor Trustee will become effective with respect to any series,
class or tranche as to which it is resigning or being removed as Trustee, and
such successor Trustee, without any further act, deed or conveyance, will
become vested with all the rights, powers, trusts and duties of the
predecessor Trustee with respect to any such series, class or tranche; but, on
request of the Issuer or the successor Trustee, such predecessor Trustee will,
upon payment of its reasonable charges, if any, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the predecessor Trustee, and will duly assign, transfer and deliver
to such successor Trustee all property and money held by such predecessor
Trustee hereunder with respect to all or any such series, class or tranche,
subject nevertheless to its lien, if any, provided for in Section 807. Upon
request of any such successor Trustee, the Issuer will execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with respect
to the Notes of one or more (but not all) series, classes or tranche, the
Issuer, the predecessor Trustee and each successor Trustee with respect to the
Notes of any applicable series, class or tranche will execute and deliver a
supplemental indenture which will contain such provisions as will be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Notes of any series,
class or tranche as to which the predecessor Trustee is not being succeeded
will continue to be vested in the predecessor Trustee, and will add to or
change any of the provisions of this Indenture as will be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture will constitute such Trustees co-trustees of the same trust and that
each such Trustee will be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee.
No successor Trustee with respect to any series, class or tranche of
Notes will accept its appointment unless at the time of such acceptance such
successor Trustee will be qualified and eligible with respect to that series,
class or tranche under this Article.
SECTION 812. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee will be a party, or any
corporation succeeding to all or substantially all of the
100
corporate trust business of the Trustee, will be the successor of the Trustee
hereunder, provided such corporation will be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Notes will
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Notes so authenticated
with the same effect as if such successor Trustee had itself authenticated
such Notes.
SECTION 813. Preferential Collection of Claims Against Issuer. If and
when the Trustee will be or become a creditor of the Issuer (or any other
obligor upon the Notes), the Trustee will be subject to the provisions of
Section 311 of the Trust Indenture Act. A Trustee who has resigned or been
removed will be subject to Section 311(a) of the Trust Indenture Act to the
extent provided therein.
SECTION 814. Appointment of Authenticating Agent. At any time when any of
the Notes remain Outstanding the Trustee, with the approval of the Issuer, may
appoint an Authenticating Agent or Agents with respect to one or more series,
classes or tranche of Notes which will be authorized to act on behalf of the
Trustee to authenticate Notes of such series, classes or tranche issued upon
exchange, registration of transfer or partial redemption thereof or pursuant
to Section 306, and Notes so authenticated will be entitled to the benefits of
this Indenture and will be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference will be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent will be
acceptable to the Issuer and will at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as an
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and, if other than the Issuer itself, subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
will be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent will cease to be eligible in accordance with the provisions
101
of this Section, such Authenticating Agent will resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent will be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, will continue to be an
Authenticating Agent, provided such corporation will be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the Issuer, to the Issuer. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Issuer, to the Issuer. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent will
cease to be eligible in accordance with the provisions of this Section, the
Trustee, with the approval of the Issuer, may appoint a successor
Authenticating Agent which will be acceptable to the Issuer and will mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Notes of the series, classes or tranche with respect to which
such Authenticating Agent will serve, as their names and addresses appear in
the Note Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder will become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent will be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of the Issuer from time to time)
reasonable compensation for its services under this Section, and the Trustee
will be entitled to be reimbursed for such payments, subject to the provisions
of Section 807.
If an appointment with respect to one or more series, classes or tranche
is made pursuant to this Section, the Notes of such series, classes or tranche
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
102
This is one of the Notes of the series, classes or tranche
designated therein referred to in the within-mentioned
Indenture.
NAME OF INDENTURE TRUSTEE, as
Trustee
By:_________________________
As Authenticating Agent
By:_________________________
Authorized Signatory
ARTICLE IX
Noteholders' Meetings, Lists, Reports by Trustee,
Issuer and Managing Beneficiary
SECTION 901. Issuer To Furnish Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Record Date, in
each year in such form as the Trustee may reasonably require, a list of
the names and addresses of the Holders of Notes of such series, classes
or tranche as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
before the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in
its capacity as Note Registrar.
SECTION 902. Preservation of Information; Communications to Noteholders.
(a)
103
The Trustee will preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders of Notes contained in the most recent list
furnished to the Trustee as provided in Section 901 and the names and
addresses of Holders of Notes received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 901 upon receipt of a new list so furnished.
(b) If 3 or more Holders of Notes of any series, class or tranche
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Note of such series, class or tranche for a period of at least 6 months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders of Notes of such series,
class or tranche or with the Holders of all Notes with respect to their rights
under this Indenture or under such Notes and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to
transmit, then the Trustee will, within 5 Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 902(a), or
(ii) inform such applicants as to the approximate number of
Holders of Notes of such series, classes or tranche or all Notes, as
the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
902(a), and as to the approximate cost of mailing to such
Noteholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee will elect not to afford such applicants access to such
information, the Trustee will, upon the written request of such applicants,
mail to each Holder of a Note of such series, classes or tranche or to all
Noteholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
902(a), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within 5 days after such tender, the
Trustee will mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the
best interests of the Holders of
104
Notes of such series, classes or tranche or all Noteholders, as the case may
be, or would be in violation of applicable law. Such written statement will
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, will
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
will find, after notice and opportunity for hearing, that all the objections
so sustained have been met and will enter an order so declaring, the Trustee
will mail copies of such material to all Noteholders of such series, classes
or tranche or all Noteholders, as the case may be, with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee will be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Notes, by receiving and holding the same, agrees with
the Issuer and the Trustee that neither the Issuer nor the Trustee will be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Notes in accordance with Section 902(b),
regardless of the source from which such information was derived, and that the
Trustee will not be held accountable by reason of mailing any material
pursuant to a request made under Section 902(b).
SECTION 903. Reports by Trustee. (a) The term "reporting date" as used in
this Section means [__________]. Within 60 days after the reporting date in
each year, beginning in [2000], the Trustee will transmit to Noteholders, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, a brief report dated as of such reporting date if required by Section
313(a) of the Trust Indenture Act.
(b) In addition to any reporting requirements of the Issuer under the
TIA, the Trustee will mail each year to all registered Noteholders, with a
copy to the Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as trustee under
this Indenture;
(ii) any amounts advanced by the Trustee under this Indenture;
(iii) the amount, interest rate and maturity date or indebtedness
owing by the Issuer to the Trustee in the Trustee's individual capacity;
(iv) the property and funds physically held by the Trustee as
Trustee;
105
(v) any release or release and substitution of collateral subject to
the lien of this Indenture which has not previously been reported; and
(vi) any action taken by the Trustee that materially affects the
Notes and that has not previously been reported.
(c) The Trustee will comply with Sections 313(b) [and 313(c)] of the
Trust Indenture Act.
(d) A copy of each such report will, at the time of such transmission to
Noteholders, be filed by the Trustee with each stock exchange upon which the
Notes are listed, and also with the Commission. The Issuer will notify the
Trustee when the Notes are admitted to trading on any national securities
exchange.
SECTION 904. Meetings of Noteholders; Amendments and Waivers. (a) The
Trustee may call a meeting of the Noteholders of a series, class or tranche at
any time. The Trustee will call a meeting upon request of the Issuer or the
Holders of at least 10% in aggregate Outstanding Dollar Principal Amount of
the Outstanding Notes of such series, class or tranche. In any case, a meeting
will be called after notice is given to the Noteholders pursuant to Section
106.
(b) Except for any consent that must be given by the Holders of each
Outstanding Note affected or any action to be taken by the Issuer as holder of
the Collateral Certificate, any resolution presented at any meeting at which a
quorum is present may be adopted by the affirmative vote of the Holders of a
majority in aggregate Outstanding Dollar Principal Amount of the Outstanding
Notes of that series, class or tranche, as the case may be. For any vote,
request, demand, authorization, direction, notice, consent, waiver or other
action provided by the Series [ ]-00 Supplement to be given or taken by holder
of the Collateral Certificate, any resolution presented at any meeting at
which a majority of the Holders of a majority in aggregate Outstanding Dollar
Principal Amount of all Outstanding Notes is present may be adopted by the
affirmative vote of the Holders of a majority in aggregate Outstanding Dollar
Principal Amount of all Outstanding Notes. However, any resolution with
respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which may be given by the Holders of not less than a
specified
106
percentage in aggregate Outstanding Dollar Principal Amount of Outstanding
Notes of a series, class or tranche or all Notes may be adopted at any meeting
which a quorum is present only by the affirmative vote of the Holders of not
less than the specified percentage in aggregate Outstanding Dollar Principal
Amount of the Outstanding Notes of that series, class or tranche or all Notes,
as the case may be. Any resolution passed or decision taken at any meeting of
Noteholders duly held in accordance with this Indenture will be binding on all
Noteholders of the affected series, class or tranche.
(c) The quorum at any meeting will be persons holding or representing a
majority in aggregate Outstanding Dollar Principal Amount of the Outstanding
Notes of a series, class or tranche or all Notes, as the case may be;
provided, however, that if any action is to be taken at that meeting
concerning a consent, waiver, request, demand, notice, authorization,
direction or other action that may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of a series, class or tranche or all Notes, as applicable,
the persons holding or representing such specified percentage in aggregate
Outstanding Dollar Principal Amount of the Outstanding Notes of such series,
class or tranche or all Notes will constitute a quorum.
(d) The Issuer may make reasonable rules for other matters relating to
action by or a meeting of Noteholders not otherwise covered by this Section.
SECTION 905. Reports by Issuer. The Issuer will
(a) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Issuer may be required
to file with the Commission pursuant to SECTION 13 or Section 15(d) of
the Securities Exchange Act; or, if the Issuer is not required to file
information, documents or reports pursuant to either of said Sections,
then it will file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities Exchange
Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional
107
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
(c) transmit by mail to all Noteholders, as their names and
addresses appear in the Note Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
SECTION 906. Accounting and Directions by the Trustee. On the [ ] day of
each month, the Issuer will cause to be rendered to each Rating Agency a
statement, dated as of such date, including the information set forth below:
(a) Principal and Interest Payable to Noteholders. The amount of
principal of and interest on each tranche of Notes which has a Payment
Date before the last day of the next following Due Period.
(b) Amount in the Accounts. The aggregate amount on deposit in each
of the Accounts and sub-Accounts.
(c) Funds Required; Funds on Deposit. The amount, if any, of any
shortfalls or surplus of funds on deposit in each sub-Account to make
payments of amounts due and payable on the next applicable Payment Date.
SECTION 907. Reports by Trustee. The Trustee will report to the Issuer
with respect to the amount on deposit in the Accounts, and the identity of the
investments included therein, as the Issuer may from time to time reasonably
request which, absent the occurrence of an Event of Default hereunder, will
not occur more often than monthly.
SECTION 908. Issuer's Report. Each month, on [ day] the Issuer will
deliver to the Trustee (with a copy to each Rating Agency) an Issuer's Report.
SECTION 909. Payment Request to Master Trust. From time to time, the
Issuer will deliver a Payment Request to the Master Trust as necessary to
request the payments required or
108
targeted to be made hereunder.
SECTION 910. Monthly Computation Statement. (a) Promptly after the
receipt by the Issuer of the Monthly Servicer Report under the Series [ ]-00
Supplement, the Issuer, in collaboration with the Servicer of the Master
Trust, complete a Monthly Computation Statement and deliver a copy thereof to
the Trustee.
(b) From time to time, the Issuer will notify the Servicer under the
Series [ ]-00 Supplement of the amount required to be delivered by the Issuer
under Section 501 of the Series [ ]-00 Supplement to calculate the Series [
]-00 Invested Amount and the Series Adjusted Invested Amount for Series [
]-00.
ARTICLE X
Supplemental Indentures; Amendments to the Pooling and
Servicing Agreement and Amendments to the Trust Agreement
SECTION 1001. Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes, the Issuer, when authorized
by an Issuer's Certificate, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Entity to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained; or
(b) to add to the covenants of the Issuer, or to surrender any right
or power herein conferred upon the Issuer, for the benefit of the Holders
of the Notes of any or all series, classes or tranche (and if such
covenants or the surrender of such right or power are to be for the
benefit of less than all series, classes or tranche of Notes, stating
that such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
series, classes or tranche); or
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions
109
with respect to matters or questions arising under this Indenture; or
(d) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to in
Section 316(a)(2) of the TIA as in effect at the date as of which this
Indenture was executed or any corresponding provision in any similar
federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article II, and to
provide for the issuance of any series, class or tranche of Notes as
provided in Article III and to set forth the terms thereof, and/or to add
to the rights of the Holders of the Notes of any series, class or
tranche; or
(f) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one
or more series, class or tranche of Notes and to add to or change any of
the provisions of this Indenture as will be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 811; or
(g) to add any additional Early Redemption Events or Events of
Default in respect of the Notes of any or all series, classes or tranche
(and if such additional Events of Default are to be in respect of less
than all series, classes or tranche of Notes, stating that such Events of
Default are expressly being included solely for the benefit of one or
more specified series, classes or tranche); or
(h) to provide for the issuance of Notes in bearer as well as fully
registered form; or
(i) to provide for the consolidation of the Master Trust and the
Issuer into a single Entity after the termination of all series of
Investor Certificates (other than the Collateral Certificate); or
(j) to make any other amendment that would not have an Adverse
Effect.
No supplemental indenture for the purposes identified in clauses (b),
(c), (e) or (g) may be entered into if to do so would materially adversely
affect the interest of the Holders of Notes
110
of any series, class or tranche. No supplemental indenture under this Section
may be entered into except upon delivery of a Master Trust Tax Opinion and an
Issuer Tax Opinion and notice thereof to the Rating Agencies.
SECTION 1002. Supplemental Indentures with Consent of Noteholders. With
written notification from each applicable Rating Agency that there will be no
Ratings Effect and the consent of the Holders of not less than a majority in
Outstanding Dollar Principal Amount of the Outstanding Notes of each series,
class or tranche affected by such supplemental indenture or indentures, by Act
of said Holders delivered to the Issuer and the Trustee, the Issuer, when
authorized by an Issuer's Certificate, and the Trustee may 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 of each such series, class or tranche under this Indenture;
provided, however, that no such supplemental indenture will, without the
consent of the Holder of each Outstanding Note affected thereby,
(a) change the scheduled payment date of any installment of interest
on, or the Expected Principal Payment Date or Legal Maturity Date of, any
Note;
(b) reduce the Stated Principal Amount of, or the interest rate on,
any Note; or change the method of computing the Outstanding Dollar
Principal Amount, the Adjusted Outstanding Dollar Principal Amount, or
the Nominal Liquidation Amount in a manner that is adverse to the Holder
of any Note;
(c) reduce the amount of a Discount Note payable upon the occurrence
of an Early Redemption Event or upon the acceleration of its Legal
Maturity Date];
(d) impair the right to institute suit for the enforcement of any
such payment on or after the Legal Maturity Date thereof;
(e) reduce the percentage in Outstanding Dollar Principal Amount of
the Outstanding Notes of any series, class or tranche, the consent of
whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences, provided for in this Indenture;
111
(f) modify any of the provisions of this Section or Section 718,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby;
(g) change any Place of Payment where any principal of, or interest
on, any Note is payable, unless otherwise provided in the applicable
terms document;
(h) change the method of computing the amount of principal of, or
interest on, any Note on any date; or
(i) make any other amendment not permitted by Section 1001.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series, class or tranche of Notes, or
which modifies the rights of the Holders of Notes of such series, class or
tranche with respect to such covenant or other provision, will be deemed not
to affect the rights under this Indenture of the Holders of Notes of any other
series, class or tranche. No supplemental indenture under this Section may be
entered into except upon delivery of a Master Trust Tax Opinion and an Issuer
Tax Opinion and with written notification from each applicable Rating Agency
that there will be no Ratings Effect.
It will not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it
will be sufficient if such Act will approve the substance thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee will be entitled to receive, and (subject to
Section 801) will be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent thereto have
been satisfied. The Trustee may, but will not (except to the extent required
in the case of a supplemental indenture entered into under Section 1001(d) or
1001(f)) be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
112
Indenture or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture will be modified
in accordance therewith, and such supplemental indenture will form a part of
this Indenture for all purposes; and every Holder of Notes theretofore or
thereafter authenticated and delivered hereunder will be bound thereby to the
extent provided therein.
SECTION 1005. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article will conform to the requirements
of the TIA as then in effect.
SECTION 1006. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and will if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Issuer will so determine, new Notes so modified
as to conform, in the opinion of the Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 1007. Amendments to the Pooling and Servicing Agreement Without
Consent. By their acceptance of a Note, the Noteholders acknowledge that the
Banks and the Master Trust Trustee may amend the Pooling and Servicing
Agreement and any supplement thereto without the consent of the Holders of any
Investor Certificates (including the Issuer) or any Noteholder, so long as
such amendment or supplement would not materially adversely affect the
interest of the Holders of any Investor Certificates or Notes of any series,
class or tranche.
SECTION 1008. Amendments to the Pooling and Servicing Agreement With
Consent. (a) With written notification from each applicable Rating Agency that
there will be no Ratings Effect and the consent of the Holders of not less
than 662/3% in Outstanding Dollar Principal Amount of the Outstanding series
of Notes affected by such amendment or supplement, by act of said Holders
delivered to the Master Trust Trustee, the Banks or the Master Trust Trustee
may amend or supplement the Pooling and Servicing Agreement for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Investor Certificates under the
Pooling and Servicing Agreement; provided, however, that no such
113
amendment or supplement will,
(i) reduce the amount of, or delay the timing of, any
distribution to be made to Investor Certificateholders or the amount
available under any series enhancement without the consent of each
affected Investor Certificateholder;
(ii) change the definition or the manner of calculating the
interest of any Investor Certificate without the consent of each
affected Investor Certificateholder;
(iii) reduce the percentage of Investor Certificateholders
required to consent to any amendment without the consent of each
Investor Certificateholder; or
(iv) cause a Ratings Effect with reject to any series or class
of Investor Certificates without the consent of Investor
Certificateholders holding not less than 662/3% of the aggregate
Outstanding Dollar principal Amount of that series or class.
(b) For purposes of any vote or consent under the Pooling and
Servicing Agreement
(i) that requires the consent or vote of each Investor
Certificateholder, each Noteholder will be treated as an Investor
Certificateholder under the Pooling and Servicing Agreement;
(ii) that requires the consent or vote of any series of
Investor Certificates, each series of Notes will be treated as a
series of Investor Certificates under the Pooling and Servicing
Agreement; and
(iii) that requires the consent or vote of any class of
Investor Certificates, each class of Notes of a single issuance
series and each subclass of Notes of a multiple issuance series will
be treated as a class of Investor Certificates under the Pooling and
Servicing Agreement.
SECTION 1009. Amendments to the Trust Agreement Without Consent. Without
the consent of the Holders of any Investor Certificates, the Issuer or any
Noteholder the Banks or the Master Trust Trustee may amend the Trust Agreement
so long as such amendment will not materially adversely affect the interests
of the Investor Certificateholders or Noteholders and the
114
Rating Agencies confirm that the amendment will not cause a Ratings Effect.
SECTION 1010. Amendments to the Trust Agreement With Consent. With
written notification from each applicable Rating Agency that there will be no
Ratings Effect and the consent of the Holders of not less than 662/3% in
Outstanding Dollar Principal Amount of the Outstanding Investor Certificates
affected by such amendment, by act of said Holders delivered to the Master
Trust Trustee, the Banks or the Master Trust Trustee may amend the Trust
Agreement for the purpose of adding, changing or eliminating any provisions of
the Trust Agreement or of modifying the rights of those Investor
Certificateholders.
SECTION 1011. Tax Opinions. No amendment or supplement made pursuant to
this Article may be entered into except upon delivery of a Master Trust Tax
Opinion and an Issuer Tax Opinion and notice thereof to the Rating Agencies.
SECTION 1012. Notice. If the Issuer, as holder of the Collateral
Certificate for the benefit of the Noteholders, receives a request for a
consent to any amendment, modification, waiver or supplement under this
Indenture, Pooling and Servicing Agreement, Trust Agreement or other document
contemplated herein, the Issuer shall forthwith send a notice of such proposed
amendment, modification, waiver or supplement, to each Noteholder as of such
date that is entitled to vote on a consent to such matter. The Issuer shall
request from such Noteholders directions as to (i) whether or not the Issuer
should take or refrain from taking any action which the holder of the
Collateral Certificate has the option to direct, (ii) whether or not to give
or execute any waivers, consents, amendments, modifications or supplements as
a holder of such Collateral Certificate and (iii) how to vote the Collateral
Certificate or the Noteholders of a series or tranche if a vote has been
called for with respect thereto. Provided such a request for Noteholder
direction shall have been made, in directing any action or casting any vote or
giving any consent as the holder of the Collateral Certificate, the Issuer
Trustee shall vote or consent with respect to such Collateral Certificate the
applicable series or tranche, as the case may be in the same proportion as the
Notes were actually voted by Holders thereof as notified by such Noteholder to
the Issuer Trustee at least to two Business Days before the Issuer Trustee
takes such action or casts such vote or gives such consent.
115
ARTICLE XI
Representations, Warranties and Covenants of Issuer
SECTION 1101. Payment of Principal and Interest. With respect to each
series, class or tranche of Notes, the Issuer will duly and punctually pay the
principal of and interest on such Notes in accordance with their terms and
this Indenture, and will duly comply with all the other terms, agreements and
conditions contained in, or made in the Indenture for the benefit of, the
Notes of such series, class or tranche.
SECTION 1102. Maintenance of Office or Agency. The Issuer will maintain
an office, agency or Paying Agent in each Place of Payment where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If at any time the Issuer will fail to
maintain such office or agency or will fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the principal Corporate Trust Office of the Trustee, and the
Issuer hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
SECTION 1103. Money for Note Payments to be Held in Trust. If the Issuer
will at any time act as its own Paying Agent for any series, class or tranche
of Notes, it will, on or before each due date of the principal of or interest
on, any of the Notes of such series, class or tranche, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal or interest so becoming due until such sums will be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure to act.
Whenever the Issuer will have one or more Paying Agents for any series,
class or tranche of Notes, it will, on or before each due date of the
principal of or interest on, any Notes of such series, class or tranche,
deposit with a Paying Agent a sum sufficient to pay the principal or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Issuer will promptly notify the Trustee of its action or failure
so to act.
116
The Issuer will cause each Paying Agent other than the Trustee for any
series, class or tranche of Notes to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such series, class or tranche in trust for the
benefit of the Persons entitled thereto until such sums will be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Notes of such series, class or tranche) in the
making of any such payment of principal or interest on the Notes of such
series, class or tranche; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
(d) immediately resign as a Paying Agent and forthwith pay to the
Trustee all sums held by it in trust for the payment of Notes if at any
time it ceases to meet the standards required to be met by a Paying Agent
at the time of its appointment; and
(e) comply with all requirements of the Internal Revenue Code with
respect to the withholding from any payments made by it on any Notes of
any applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series, class or tranche
of Notes or for any other purpose, pay, or by Issuer Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Issuer or such
Paying Agent in respect of each and every series, class or tranche of Notes as
to which it seeks to discharge this Indenture or, if for any other purpose,
all sums so held in trust by the Issuer in respect of all Notes, such sums to
be held by the Trustee upon the same trusts as those upon which such sums were
held by the Issuer or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent will be released from all further
liability with respect to such money.
117
Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuer, in trust for the payment of the principal of or interest on any
Note of any series, class or tranche and remaining unclaimed for two years
after such principal or interest has become due and payable will be paid to
the Issuer on Issuer Request, or (if then held by the Issuer) will be
discharged from such trust; and the Holder of such Note will thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, will thereupon
cease. The Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Issuer mail to the Holders of the
Notes as to which the money to be repaid was held in trust, as their names and
addresses appear in the Note Register, a notice that such funds remain
unclaimed and that, after a date specified in the notice, which will not be
less than 30 days from the date on which the notice was first mailed to the
Holders of the Notes as to which the money to be repaid was held in trust, any
unclaimed balance of such funds then remaining will be paid to the Issuer free
of the trust formerly impressed upon it.
The Issuer initially authorizes Citibank, N.A., to act as Paying Agent
for the Notes on its behalf. The Issuer may at any time and from time to time
authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series, class or tranche of Notes
issued under this Indenture.
SECTION 1104. Statement as to Compliance. The Issuer will deliver to the
Trustee, within 120 days after the end of each fiscal year, a written
statement signed by the Issuer, stating that
(a) a review of the activities of the Issuer during such year and of
the Issuer's performance under this Indenture and under the terms of the
Notes has been made under his supervision; and
(b) to the best of his knowledge, based on such review, the Issuer
has complied with all conditions and covenants under this Indenture
through such year, or, if there has been a default in the fulfillment of
any such obligation (without regard to any period of grace or requirement
of notice), specifying each such default known to him and the nature and
status thereof.
118
SECTION 1105. Legal Existence. The Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence.
SECTION 1106. Further Instruments and Acts. Upon request of the Trustee,
the Issuer will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 1107. Compliance with Laws. The Issuer will comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability
of the Issuer to perform its obligations under the Notes or this Indenture.
SECTION 1108. Notice of Events of Default. The Issuer agrees to give the
Trustee and the Rating Agencies prompt written notice of each Event of Default
hereunder and each default on the part of the Master Trust or the Banks of
their respective obligations under the Pooling and Servicing Agreement (as
amended and supplemented from time to time), the Collateral and any Derivative
Counterparty.
SECTION 1109. Certain Negative Covenants. The Issuer will not:
(a) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts withheld in
good faith from such payments under the Internal Revenue Code or other
applicable tax law);
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Trustee created by this
Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may
be expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the
Trustee created by this Indenture) to be created on or extend to or
otherwise arise upon or burden the Collateral or any part thereof or any
interest therein or the proceeds thereof; or
119
(d) permit the lien in favor of the Trustee created by this
Indenture not to constitute a valid first priority security interest in
the Collateral; or
(e) voluntarily dissolve or liquidate.
SECTION 1110. No Other Business. The Issuer will not engage in any
business other than financing, purchasing, owning, selling and managing the
Collateral in the manner contemplated by this Indenture and the activities
incidental thereto.
SECTION 1111. No Borrowing. The Issuer will not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
ARTICLE XII
Early Redemption of Notes
SECTION 1201. Applicability of Article. Pursuant to the terms of this
Article, the Issuer will redeem and pay, provided that funds are available,
each affected series, class or tranche of Notes upon the occurrence of any
Early Redemption Event. The following are "Early Redemption Events":
(a) the occurrence of the Expected Principal Payment Date of any
Note;
(b) the occurrence of any Amortization Event as defined in the
Pooling and Servicing Agreement;
(c) mandatory prepayment of the entire Collateral Certificate
resulting from a breach of a representation or warranty by the Banks
under the Pooling and Servicing Agreement;
(d) at any time a Payment Request with respect to a requested
payment of Available Investor Principal Collections (as defined in the
Series [ ]-00 Supplement) has been issued with respect to such series,
class or tranche, the Portfolio Yield (as defined in the Pooling and
Servicing Agreement) for any Due Period will be less than the
120
Weighted Average Interest Rates for all tranches of Notes as of the last
day of such Due Period;
(e) the amount of Surplus Finance Charge Collections averaged over
any three consecutive Due Periods will be less than the Required Surplus
Finance Charge Amount for the last of such three consecutive Due Periods;
(f) the aggregate Outstanding Dollar Principal Amount of the Notes
of the affected series is reduced to [ ]% or less of its Initial Dollar
Principal Amount;
(g) either Bank (unless otherwise required by any Requirements of
Law) reduces the Periodic Rate Finance Charge (as defined in the Pooling
and Servicing Agreement) applicable to any Account (as defined in the
Pooling and Servicing Agreement) to a rate that would result in the
weighted average of the Periodic Rate Finance Charges applicable to all
the Accounts as of the last day of any Due Period (as defined in the
Pooling and Servicing Agreement) being less than the sum of
(i) the weighted average of (i) the Certificate Rates (as
defined in the Pooling and Servicing Agreement) of each Outstanding
Series (as defined in the Pooling and Servicing Agreement) (other
than Series [ ]-00), and (ii) the Weighted Average Rate (as defined
in the Series [ ]-00 Supplement), in each case as of such last day;
and
(ii) 6%;
(h) with respect to any series, class or tranche of Notes, any event
specified in the terms document for such series, class or tranche as
applying to such series, class or tranche; or
(i) if such series or tranche benefits from any Derivative
Agreement, any applicable Derivative Counterparty will default on any
payment obligation under the related Derivative Agreement and the
continuance of such default for the period established in the related
Derivative Agreement;
(j) if such series or tranche benefits from any Derivative
Agreement, and such
121
Derivative Agreement fails to be a Performing Derivative Agreement and
such failure is continuing; or
(k) if such series or tranche benefits from any Derivative
Agreement, the occurrence of any default specified in the terms document
for such series or tranche relating to the credit rating of the
counterparty to such Derivative Agreement.
SECTION 1202. Notice. Promptly after the occurrence of any Early
Redemption Event, the Issuer will promptly notify the Trustee and the Rating
Agencies of the identity, stated principal amount and Outstanding Dollar
Principal Amount of the affected series, classes or tranches of Notes to be
redeemed. Notice of redemption will promptly be given by first-class mail,
postage prepaid to each Holder of Notes to be redeemed, at his address
appearing in the Note Register. All notices of redemption will state (a) the
date on which the redemption of the applicable series, classes or tranches of
Notes pursuant to this Article will begin, (b) the redemption price for such
series, classes or tranches of Notes, which will be the aggregate Outstanding
Dollar Principal Amount of such series, classes or tranches plus accrued or
accreted and unpaid interest (if any), and (c) the series, classes or tranches
of Notes to be redeemed pursuant to this Article.
SECTION 1203. Payment of Redemption Price. The redemption price of each
tranche of Notes to be redeemed pursuant to this Article will be paid pursuant
to Section 502(b).
ARTICLE XIII
Collateral
SECTION 1301. Recording, Etc. The Issuer intends the Security Interest
granted pursuant to this Indenture in favor of the Trustee for the benefit of
the Noteholders and the Trustee to be prior to all other liens in respect of
the Collateral, and the Issuer will take all actions necessary to obtain and
maintain, in favor of the Trustee, for the benefit of the Noteholders and the
Trustee, a first lien on and a first priority, perfected security interest in
the Collateral. The Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, all as prepared by the Managing Beneficiary and
122
delivered to the Issuer, and will take such other action necessary or
advisable to:
(a) grant a Security Interest more effectively in all or any portion
of the Collateral;
(b) maintain or preserve the Security Interest (and the priority
thereof) in favor of the Trustee for the benefit of the Noteholders,
applicable counterparties to Derivative Agreements and the Trustee
created by this Indenture or carry out more effectively the purposes
hereof;
(c) perfect, publish notice of or protect validity of any grant made
or to be made by this Indenture;
(d) enforce the Collateral Certificate, the Derivative Agreements
and each other instrument or agreement included in the Collateral;
(e) preserve and defend title to the Collateral and the rights of
the Trustee in such Collateral against the claims of all persons and
parties; or
(f) pay all taxes or assessments levied or assessed upon the
Collateral when due.
The Issuer will from time to time promptly pay and discharge all
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Indenture, any amendments thereto and any other
instruments of further assurance. The Issuer hereby designates the Trustee its
agent and attorney-in-fact to execute any financing statement, continuation
statement or other instrument prepared by the Issuer pursuant to this Section
but such designation will not impose a duty upon the Trustee to prepare such
documents.
SECTION 1302. Trust Indenture Act Requirements. The release of any
Collateral, from the lien created by this Indenture or the release of, in
whole or in part, such liens, will not be deemed to impair the Security
Interests in contravention of the provisions hereof if and to the extent the
Collateral or liens are released pursuant to the terms hereof. The Trustee and
each of the Holders of the Notes acknowledge that a release of Collateral or
liens strictly in accordance with the terms hereof will not be deemed for any
purpose to be an impairment of the Security Interests in contravention of the
terms of this Indenture. To the extent applicable, without
123
limitation, the Issuer and each other obligor on the Notes will cause TIA ss.
314(d) relating to the release of property or securities from the liens hereof
to be complied with. Any certificate or opinion required by TIA ss. 314(d) may
be made by an officer of the appropriate obligor, except in cases in which TIA
ss. 314(d) requires that such certificate or opinion be made by an independent
person.
SECTION 1303. Suits To Protect the Collateral. Subject to the provisions
of this Indenture, the Trustee will have power to institute and to maintain
such suits and proceedings as it may deem expedient to prevent any impairment
of the Collateral by any acts which may be unlawful or in violation of this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect their interests and the interests of the Trustee and the
Holders of the Notes in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may
be unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the Security Interests or be
prejudicial to the interests of the Holders of the Notes or the Trustee). No
counterparties to a Derivative Agreement may direct the Trustee to enforce the
Security Interest. Each counterparty's rights consist solely of the right to
receive collections allocated for its benefit pursuant to Article V.
SECTION 1304. Purchaser Protected. In no event will any purchaser in good
faith of any property purported to be released hereunder be bound to ascertain
the authority of the Trustee to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor will any purchaser or other
transferee of any property or rights permitted by this Article to be sold be
under any obligation to ascertain or inquire into the authority of the Issuer
or any other obligor, as applicable, to make any such sale or other transfer.
SECTION 1305. Powers Exercisable by Receiver or Trustee. In case the
Collateral will be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any other
obligor, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an
instrument signed by such receiver or trustee will be deemed the equivalent of
any similar instrument of the Issuer or any other obligor, as applicable, or
of any officer or officers thereof
124
required by the provisions of this Article.
SECTION 1306. Determinations Relating to Collateral. In the event (i) the
Trustee will receive any written request from the Issuer or any other obligor
for consent or approval with respect to any matter or thing relating to any
Collateral or the Issuer's or any other obligor's obligations with respect
thereto or (ii) there will be due to or from the Trustee under the provisions
hereof any performance or the delivery of any instrument or (iii) the Trustee
will become aware of any nonperformance by the Issuer or any other obligor of
any covenant or any breach of any representation or warranty of the Issuer or
any other obligor set forth in this Indenture, then, in each such event, the
Trustee will be entitled to hire experts, consultants, agents and attorneys to
advise the Trustee on the manner in which the Trustee, as the case may be,
should respond to such request or render any requested performance or response
to such nonperformance or breach (the expenses of which will be reimbursed to
the Agent and the Trustee pursuant to Section 807). The Trustee will be fully
protected in the taking of any action recommended or approved by any such
expert, consultant, agent or attorney or agreed to by a majority of Holders of
the Notes.
SECTION 1307. Release of Collateral. (a) Subject to the payment of its
fees and expenses pursuant to Section 807, the Trustee will, at the request of
the Issuer or when otherwise required by the provisions of this Indenture,
execute instruments to release property from the lien of this Indenture, or
convey the Trustee's interest in the same, in a manner and under circumstances
which are not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Trustee as provided in this Article
will be bound to ascertain the Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
funds.
(b) Upon delivery of an Issuer's Certificate certifying that the Issuer's
obligations under this Indenture have been satisfied and discharged by
complying with the provisions of this Article, the Trustee will (i) execute
and deliver such releases, termination statements and other instruments (in
recordable form, where appropriate) as the Issuer or any other obligor, as
applicable, may reasonably request evidencing the termination of the Security
Interests created by this Indenture and (ii) not to be deemed to hold the
Security Interests for the benefit of the Trustee and the Holders of the
Notes.
(c) The Banks and the Noteholders will be entitled to receive at least 10
days written
125
notice when the Trustee proposes to take any action pursuant to Section
1307(a), accompanied by copies of any instruments involved, and the Trustee
will also be entitled to require, as a condition to such action, an Opinion of
Counsel, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Trustee in
connection with any such action.
SECTION 1308. Certain Actions by Trustee. Any action taken by the Trustee
pursuant to this Article in respect of the release of Collateral will be taken
by the Trustee as its interest in such Collateral may appear, and no provision
of this Article is intended to, or will, excuse compliance with any provision
hereof.
SECTION 1309. Opinions as to Collateral. (a) On the Effective Date, the
Issuer will furnish to the Trustee an Opinion of Counsel either stating that,
in the opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental hereto,
and any other requisite documents, and with respect to the execution and
filing of any financing statements and continuation statements, as are
necessary to perfect and make effective the first priority lien and security
interest in favor of the Trustee, for the benefit of the Trustee, created by
this Indenture and reciting the details of such action, or stating that, in
the opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before [ ] in each calendar year, beginning in 2000, the Issuer
will furnish to the Trustee an Opinion of Counsel with respect to each Uniform
Commercial Code financing statement which has been filed by the Issuer either
stating that, (i) in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the first
priority lien and security interest created by this Indenture and reciting the
details of such action or (ii) in the opinion of such counsel no such action
is necessary to maintain such lien and security interest. Such Opinion of
Counsel will also describe the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be
126
required to maintain the lien and security interest of this Indenture until [
] in the following calendar year.
SECTION 1310. Delegation of Duties. The Issuer may contract with or
appoint other Persons (including the Banks and their affiliates) to assist it
in performing its duties under this Indenture, and any performance of such
duties by a Person identified to the Trustee in an Issuer's Certificate will
be deemed to be action taken by the Issuer.
ARTICLE XIV
Miscellaneous
SECTION 1401. No Petition. The Trustee, by entering into this Indenture,
each Derivative Counterparty, by designating that the obligations of the
Issuer pursuant to the applicable Derivative Agreement are secured by the
Collateral, each Noteholder, by accepting a Note, agrees that it will not at
any time institute against the Banks or the Issuer, or join in any institution
against the Banks or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection
with any obligations relating to the Notes, this Indenture or any Derivative
Agreement.
SECTION 1402. Trust Obligations. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer or the Issuer
Trustee on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Issuer
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Issuer Trustee in its individual capacity, any holder
of a beneficial interest in the Issuer or the Issuer Trustee or of any
successor or assign of the Issuer Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Issuer Trustee has no such obligations in its individual capacity) and except
that any such partner, owner or beneficiary will 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.
127
SECTION 1403. Limitations on Liability. It is expressly understood and
agreed by the parties hereto that (a) this Indenture is executed and delivered
by the Issuer Trustee not individually or personally but solely as Issuer
Trustee, in the exercise of the powers and authority conferred and vested in
it, (b) each of the representations, undertakings and agreements herein made
on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by the Issuer Trustee but is made
and intended for the purpose for binding only the Issuer, (c) nothing herein
contained will be construed as creating any liability on the Issuer Trustee
individually or personally, to perform any covenant of the Issuer either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to this Indenture and by any person claiming
by, through or under them and (d) under no circumstances will the Issuer
Trustee be personally liable for the payment of any indebtedness or expenses
of the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under
this Indenture or any related documents.
SECTION 1404. Notes Treated as Debt. The Issuer and the Noteholders agree
that the Notes are intended to be debt of the Banks for federal, State and
local income and franchise tax purposes and agree to treat the Notes
accordingly for all such purposes, unless otherwise required by a taxing
authority.
SECTION 1405. Actions Taken by the Issuer. Any and all actions that are
to be taken by the Issuer will be taken by either the Managing Beneficiary or
the Issuer Trustee on behalf of the Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CITIBANK CREDIT CARD ISSUANCE TRUST,
by [ ], as Issuer
Trustee and not in its individual
capacity
by:
---------------------------------
128
Name:
Title:
Attest:
------------------------
[BANKERS TRUST COMPANY], as Trustee
and not in its individual capacity
by:
----------------------------------
Name:
Title:
Attest:
------------------------
000
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF CASTLE )
On [ ], [ ], before me personally came , to me known, who, being by me
duly sworn, did depose and say that he resides at ; that he is of Citibank
Credit Card Issuance Trust, one of the parties described in and which executed
the above instrument; that he knows the corporate seal of said corporation;
that the seal affixed to that instrument is such corporate seal; that it was
affixed by authority of the board of directors of the corporation; and that he
signed his name thereto by like authority.
---------------------------------
Name
----------------------
[Notarial Seal]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On [ ], [ ], before me personally came , to me known, who, being by me
duly sworn, did depose and say that he resides at ; that he is of [Indenture
Trustee Name], one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to that instrument is such corporate seal; that it was affixed by
authority of the board of directors of the corporation; and that he signed his
name thereto by like authority.
----------------------------------
Name
--------------------
[Notarial Seal]
EXHIBIT A
[FORM OF] PAYMENT REQUEST
From: Citibank (South Dakota), N.A., as
Series [ ] Certificate
Representative under the Series [ ]
Supplement and as Managing
Beneficiary of the Citibank Credit
Card Issuance Trust
To: Citibank (South Dakota), N.A., as
Servicer under Citibank Credit Card
Master Trust I
Date:
Citibank Credit Card Master Trust I
Series [ ] Certificate
Due Period ending [ ], 20__
[Reference is made to the Series [ ] Supplement, dated as of [ ] (the "Series
[ ] Supplement"), among [ ], and Indenture, dated as of [ ] (the "Indenture"),
among [ ]. Terms used herein have the meanings provided in the Series [ ]
Supplement or the Indenture, as applicable.
The Series [ ] Representative requests the following payments with respect to
the Series [ ] Certificate be made on the following dates:
A. Allocations of Investor Finance Charge Collections available pursuant to
Section 4.02(a)(iii) of the Series [ ] Supplement.
1. Required pursuant to Section 501(a) of the
Indenture (to pay accrued and unpaid costs,
expenses and fees of the Trustee pursuant to
Section 807 of the Indenture, to be paid as soon
as practicable after the end of the applicable Due
Period)..................................................$________
2. Required pursuant to Section 501(b) of the
Indenture (to make the targeted deposits to the
Interest Funding Account pursuant to Section 503
of the Indenture, to be paid on the applicable
Interest Deposit Date)
Tranche Interest Deposit Date Amount
$
$
$
$
$
Total................................$________
3. Required pursuant to Section 501(c) of the
Indenture (to make the targeted deposits to the
Class C Reserve Account pursuant to Section 517 of
the Indenture, on the applicable Monthly Interest
Date
Tranche Monthly Interest Date Amount
------- --------------------- ------
$
$
$
$
$
Total.................................$________
4. Required pursuant to Section 501(d) of the
Indenture (to make the targeted reinvestment in
the Invested Amount of the Series [ ] Certificate
pursuant to Section 519(a) of the Indenture, to be
paid to the Servicer as soon as practicable after
the end of the applicable Due Period).....................$________
5. Balance of the Investor Finance Charge Collections
available pursuant to Section 4.02(a)(iii) of the
Series [ ] Supplement to be paid to the Issuer as
soon as practicable after the end of the
applicable Due Period.....................................$________
B. Allocations of Available Investor Principal Collections
available pursuant to Section 4.02(b)(ii) of the Series
[ ] Supplement.
1. Required pursuant to Section 502(a) of the
Indenture (to fund deficiencies in the amounts to
be paid pursuant to Items A1 and A2, subject to
the limitations set forth in the Indenture, to be
paid on the applicable Interest Deposit Date)
Tranche Interest Deposit Date Amount
------- --------------------- ------
$
$
$
$
$
Total.................................$________
2. Required pursuant to Section 502(b) of the
Indenture (to make the targeted deposits to the
Principal Funding Account pursuant to Section 508
of the Indenture, to be paid on the applicable
Principal Deposit Date)
2
Tranche Principal Deposit Date Amount
------- ---------------------- ------
$
$
$
$
$
Total.................................$________
3. Balance of the Available Investor Principal
Collections available pursuant to Section
4.02(b)(ii) of the Series [ ] Supplement to be
paid to the Servicer to be reinvested in the
Invested Amount of the Series [ ] Certificate as
soon as practicable after the end of the
applicable Due Period.....................................$________
CITIBANK CREDIT CARD ISSUANCE
TRUST, as Issuer
By: CITIBANK (SOUTH DAKOTA),
N.A., as Managing Beneficiary
By:
Name:
Title:
3
EXHIBIT B
[FORM OF] MONTHLY COMPUTATION STATEMENT
Date:
Citibank Credit Card Master Trust I
Series [ ] Certificate
Due Period ending [ ], 20__
Reference is made to the Series [ ] Supplement, dated as of [ ] (the "Series [
] Supplement"), among [ ], and Indenture, dated as of [ ] (the "Indenture"),
among [ ]. Terms used herein have the meanings provided in the Series [ ]
Supplement or the Indenture, as applicable.
The computations of the Series [ ] Invested Amount, the Series Adjusted
Invested Amount for Series [ ], the Nominal Liquidation Amount, the principal
amount of the Series [ ] Certificate, and as of the end of the Due Period
ending [ ], 20__ (the "applicable Due Period"), are as follows:
A. Increases in the components of the Series [ ] Invested Amount, the Series
Adjusted Invested Amount for Series [ ] and the principal amount of the
Series [ ] Certificate, as of the end of the applicable Due Period
1. The cumulative sum of the Initial Dollar Principal
Amount of each tranche of Notes as of the end of
the applicable Due Period pursuant to Section
5.01(a)(i) of the Series [ ] Supplement and clause
(a) of the definition of "Nominal Liquidation
Amount" in the Indenture
From all prior Due Periods..............$________
From the applicable Due Period..........$________
Total....................................................$________
2(a). The cumulative sum of accretions of interest on
Discount Notes targeted to be deposited (whether
or not actually deposited and paid to by the
Issuer to the Servicer) for reinvestment in the
Series [ ] Invested Amount pursuant to Section
5.01(a)(ii)(A) of the Series [ ] Supplement and
Section 519(a) of the Indenture
From all prior Due Periods..............$________
From the applicable Due Period..........$________
Total.....................................................$________
2(b). The cumulative sum of accretions of interest on
Discount Notes paid by the Issuer to the Master
Trust for reinvestment in the Series [ ] Invested
Amount pursuant to Section 5.01(a)(ii)(B) of the
Series [ ] Supplement and Sections 507(b) of the
Indenture
From all prior Due Periods...............$________
From the applicable Due Period...........$________
Total......................................................$________
3. The cumulative sum of reinvestments from releases
of prefunding amounts paid to by the Issuer to the
Servicer for reinvestment in the Series [ ]
Invested Amount pursuant to Section 5.01(a)(iii)
of the Series [ ] Supplement and Sections 511(d)
and 519(b) of the Indenture
From all prior Due Periods...............$________
From the applicable Due Period...........$________
Total.......................................................$________
4. The cumulative sum of reimbursements of Investor
Charge-Offs paid by the Issuer to the Servicer for
reinvestment in the Series [ ] Invested Amount
pursuant to Section 5.01(a)(iv) of the Series [ ]
Supplement and Section 519(c) of the Indenture
From all prior Due Periods...............$________
From the applicable Due Period...........$________
Total........................................................$________
SUBTOTAL: All amounts paid by the Issuer to the
Master Trust (Sum of Items A1, A2(b), A3 and
A4)......................................$________
5. The cumulative sum any reimbursements of Investor
Charge-Offs made pursuant to Section 5.01(a)(v) of
the Series [ ] Supplement
From all prior Due Periods...............$________
From the applicable Due Period...........$________
Total........................................................$________
B. Decreases in the components of the Series [ ] Invested Amount, the Series
Adjusted Invested Amount for Series [ ], and the principal amount of the
Series [ ] Certificate as of the end of the applicable Due Period
1. The cumulative sum of all payments of principal
collections paid to the Issuer pursuant to Section
4.02(b)(ii) or Section 4.02(c)(ii) of the Series
Supplement which are reallocated pursuant to
Section 5.01(b)(ii)(A) of the Series [ ]
Supplement or Section 502(b)(i) the Indenture to
pay interest on the Notes
From all prior Due Periods................$________
2
From the applicable Due Period............$________
Total.......................................................$________
2(a). The cumulative sum of all payments of principal
collections paid to the Issuer (other than those
referred to in item B(1) above) on deposit in
Principal Funding Account or have been withdrawn
from the Principal Funding Account pursuant to
Section 511(a), (b) or (c) of the Indenture
From all prior Due Periods................$________
From the applicable Due Period............$________
Total........................................................$________
SUBTOTAL All payments of principal collections by
the Master Trust to the Issuer (Sum of Items B1
and B2(a))................................$________
2(b). With respect to all tranches of Notes with a
Nominal Liquidation Amount of zero, the cumulative
sum of all payments of principal collections to
the Issuer (other than those referred to in item
B(1) above) on deposit in Principal Funding
Account or withdrawn from the Principal Funding
Account pursuant to Section 511(a), (b) or (c) of
the Indenture
From all prior Due Periods................$________
From the applicable Due Period............$________
Total........................................................$________
3. Nominal Liquidation Amount of accelerated Class C
Notes which cease to be Outstanding pursuant
Section [ ] of the Indenture after a sale of
credit card receivables pursuant to Section 7.03
of the Series [ ] Supplement and Section 708 of
the Indenture
From all prior Due Periods................$________
From the applicable Due Period............$________
Total........................................................$________
4. Nominal Liquidation Amount of tranches of Notes
which have reached their Legal Maturity Dates and
which cease to be Outstanding after a sale of
credit card receivables pursuant to Section 703 of
the Series [ ] Supplement and Section 522 of the
Indenture
From all prior Due Periods................$________
From the applicable Due Period............$________
3
Total........................................................$________
5. Investor Charge-Offs allocated to the Series [ ]
Certificate pursuant to Sections 4.03 and
5.01(b)(v) of the Series [ ] Supplement and clause
(b)(vi) of the definition of Nominal Liquidation
Amount in the Indenture
From all prior Due Periods..................$________
From the applicable Due Period..............$________
Total........................................................$________
C. Series [ ] Invested Amount and aggregate Nominal Liquidation Amount of
the Notes (sum of Items A1, A2(b), A3, A4 and A5, less Items B1, B2(a),
B3, B4 and B5)....................................................$________
D. Series Adjusted Invested Amount for Series [ ] (sum of Items A1, A2(b),
A3, A4 and A5, less Items B1, B2(b), B3, B4 and B5)...............$________
E. 1. Principal amount of the Series [ ] Certificate and aggregate Adjusted
Outstanding Principal Amount of the Notes (sum of Items A1, A2(a)
and A3, less Item B2)*.......................................$________
2. Aggregate amount on deposit in the Principal Funding
Account......................................................$________
3. Aggregate Outstanding Dollar Principal Amount of the Notes (sum of
Items E1 and E2).............................................$________
CITIBANK (SOUTH DAKOTA), N.A.,
Servicer of Citibank Credit Card Master
Trust I,
By:
Name:
Title:
CITIBANK CREDIT CARD ISSUANCE
TRUST, as Issuer
By: CITIBANK (SOUTH DAKOTA),
N.A., as Managing Beneficiary
By:
Name:
Title:
---------------------------
* But subject to Section 5.01(c) of the Series [ ] Supplement.
4
EXHIBIT C
[FORM OF] ISSUER'S REPORT
From: Citibank (South Dakota), N.A., as
Managing Beneficiary of the
Citibank Credit Card Issuance Trust
To: [Rating Agencies]
Date:
Citibank Credit Card Master Trust I
Due Period ending [ ], 20__
Reference is made to Indenture, dated as of [ ] (the "Indenture"), among [ ].
Terms used herein have the meanings provided in the Indenture.
The following computations are as of the end of the Due Period ending [ ],
20__ (the "applicable Due Period"), as follows, after giving effect to all
deposits, allocations, reallocations and payments to be made under the
Indenture in the month after the end of the applicable Due Period.
A. Interest to be paid on next Interest Payment Date following the end of
the applicable Due Period
Amount of
Interest Rate interest due on
Basis and next Interest Next Interest
Series, Class, Tranche Interest Rate Period Payment Date Payment Date
[Fixed] [__-
month LIBOR
plus ____ ]
B. Targeted deposits to Interest Funding sub-Accounts
Targeted Actual
Deposit to Deposit to
Interest Interest
Funding Funding
sub-Account sub-Account Shortfall
Series, for for from Shortfall
Class, Applicable Applicable applicable from earlier Cumulative
Tranche Due Period Due Period Due Period Due Periods Shortfall
C. Targeted deposits to Class C Reserve sub-Accounts
Targeted Actual
Deposit to Deposit to
Class C Class C
Reserve Reserve
sub-Account sub-Account Shortfall Shortfall
Series, for for from from
Class, Applicable Applicable applicable earlier Cumulative
Tranche Due Period Due Period Due Period Due Periods Shortfall
D. Targeted deposits to Principal Funding sub-Accounts
Targeted Actual
Deposit to Deposit to
Principal Principal
Funding Funding
sub-Account sub-Account Shortfall Shortfall
Series, for for from from
Class, Applicable Applicable applicable earlier Cumulative
Tranche Due Period Due Period Due Period Due Periods Shortfall
2
E. Stated Principal Amount, Outstanding Dollar Principal Amount and Nominal
Liquidation Amount*
[Series, Class, Tranche]
Changes after giving effect to all deposits, allocations,
payments and reallocations after end of applicable Due
Period
Increases Decreases
from other from other
sources sources
(Nominal (Nominal
Increases Liquidation Liquidation
from Amount Decreases Amount Balance
As of end of accretion only) -- see from only) -- see after giving
applicable (Discount) Note 1 payments Note 2 effect to
Due Period Notes Only) below of principal below changes
Stated Principal
Amount
Outstanding Dollar
Principal Amount
Nominal
Liquidation
Amount (plus
Amounts on
deposit in
applicable
Principal Funding
sub-Account)
Note 1: [Explain any increases in the Nominal Liquidation Amount from
reimbursements of earlier reductions.]
Note 2: [Explain any decreases in the Nominal Liquidation Amount from
allocation of Investor Charge-Offs or reallocations of Principal
Collections to pay interest on a senior class, etc.]
CITIBANK CREDIT CARD ISSUANCE
TRUST, as Issuer
By: CITIBANK (SOUTH DAKOTA),
N.A., as Managing Beneficiary
By:
Name:
Title:
-----------------
* Repeat table for each Series, class and tranche of Notes.
3
