EXHIBIT 4.1
CHASE ISSUANCE TRUST
as Issuer
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Indenture Trustee
____________________
AMENDED AND RESTATED
INDENTURE
dated as of October 15, 2004
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions............................................................................2
Section 1.02 Compliance Certificates and Opinions..................................................19
Section 1.03 Form of Documents Delivered to Indenture Trustee......................................20
Section 1.04 Acts of Noteholders...................................................................21
Section 1.05 Notices, etc., to Indenture Trustee and Issuer........................................23
Section 1.06 Notices to Noteholders; Waiver........................................................23
Section 1.07 Conflict with Trust Indenture Act.....................................................24
Section 1.08 Effect of Headings and Table of Contents..............................................25
Section 1.09 Successors and Assigns................................................................25
Section 1.10 Separability..........................................................................25
Section 1.11 Benefits of Indenture.................................................................25
SECTION 1.12 GOVERNING LAW.........................................................................25
Section 1.13 Counterparts..........................................................................25
Section 1.14 Indenture Referred to in the Trust Agreement..........................................25
Section 1.15 Legal Holidays........................................................................25
ARTICLE II NOTE FORMS
Section 2.01 Forms Generally.......................................................................26
Section 2.02 Forms of Notes........................................................................26
Section 2.03 Form of Indenture Trustee's Certificate of Authentication.............................26
Section 2.04 Notes Issuable in the Form of a Global Note...........................................27
Section 2.05 Temporary Global Notes and Permanent Global Notes.....................................29
Section 2.06 Beneficial Ownership of Global Notes..................................................30
Section 2.07 Notices to Depository.................................................................31
ARTICLE III THE NOTES
Section 3.01 General Title; General Limitations; Issuable in Series; Terms of a Series, Class or
Tranche of Notes......................................................................32
Section 3.02 Denominations.........................................................................35
Section 3.03 Execution, Authentication and Delivery and Dating.....................................36
Section 3.04 Temporary Notes.......................................................................36
Section 3.05 Registration, Transfer and Exchange...................................................37
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes...........................................40
Section 3.07 Payment of Interest; Interest Rights Preserved; Withholding Taxes.....................41
Section 3.08 Persons Deemed Owners.................................................................41
Section 3.09 Cancellation..........................................................................41
Section 3.10 New Issuances of Notes................................................................42
Section 3.11 Specification of Required Subordinated Amount and other Terms with Respect to each
Series, Class or Tranche of Notes.....................................................44
Section 3.12 Shared Excess Available Finance Charge Collection Groups and Other Groups.............44
Section 3.13 Unapplied Excess Finance Charge Collections...........................................44
Section 3.14 Unapplied Master Trust Level Excess Finance Charge Collections........................45
Section 3.15 Unapplied Master Trust Level Principal Collections....................................46
ARTICLE IV BANK ACCOUNTS AND INVESTMENTS
Section 4.01 Collections...........................................................................47
Section 4.02 Bank Accounts.........................................................................47
Section 4.03 Investment of Funds in the Bank Accounts..............................................48
ARTICLE V SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE ISSUER OR CHASE USA
Section 5.01 Satisfaction and Discharge of Indenture...............................................50
Section 5.02 Application of Trust Money............................................................50
Section 5.03 Cancellation of Notes Held by the Issuer or the Transferor............................51
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES
Section 6.01 Events of Default.....................................................................52
Section 6.02 Acceleration of Maturity; Rescission and Annulment....................................53
Section 6.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee or the
Collateral Agent on Behalf of the Indenture Trustee...................................55
Section 6.04 Indenture Trustee or the Collateral Agent May File Proofs of Claim....................55
Section 6.05 Indenture Trustee and the Collateral Agent May Enforce Claims Without
Possession of Notes ..................................................................56
Section 6.06 Application of Money Collected........................................................57
Section 6.07 Collateral Agent May Elect to Hold the Collateral Certificate.........................57
Section 6.08 Sale of Collateral for Accelerated Notes..............................................57
Section 6.09 Noteholders Have the Right to Direct the Time, Method and Place of Conducting Any
Proceeding for Any Remedy Available to the Indenture Trustee or the Collateral Agent..58
Section 6.10 Limitation on Suits...................................................................58
Section 6.11 Unconditional Right of Noteholders to Receive Principal and Interest;
Limited Recourse......................................................................59
Section 6.12 Restoration of Rights and Remedies....................................................59
Section 6.13 Rights and Remedies Cumulative........................................................59
Section 6.14 Delay or Omission Not Waiver..........................................................59
Section 6.15 Control by Noteholders................................................................60
Section 6.16 Waiver of Past Defaults...............................................................60
Section 6.17 Undertaking for Costs.................................................................60
Section 6.18 Waiver of Stay or Extension Laws......................................................61
ARTICLE VII THE INDENTURE TRUSTEE
Section 7.01 Certain Duties and Responsibilities...................................................62
Section 7.02 Notice of Defaults....................................................................63
Section 7.03 Certain Rights of Indenture Trustee...................................................63
Section 7.04 Not Responsible for Recitals or Issuance of Notes.....................................64
Section 7.05 May Hold Notes........................................................................65
Section 7.06 Money Held in Trust...................................................................65
Section 7.07 Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity....65
Section 7.08 Disqualification; Conflicting Interests...............................................66
Section 7.09 Corporate Indenture Trustee Required; Eligibility.....................................66
Section 7.10 Resignation and Removal; Appointment of Successor.....................................66
Section 7.11 Acceptance of Appointment by Successor................................................68
Section 7.12 Merger, Conversion, Consolidation or Succession to Business...........................69
Section 7.13 Preferential Collection of Claims Against Issuer......................................69
Section 7.14 Appointment of Authenticating Agent...................................................69
Section 7.15 Tax Returns...........................................................................71
Section 7.16 Representations and Covenants of the Indenture Trustee................................71
Section 7.17 Custody of Collateral Certificates and Collateral.....................................71
Section 7.18 Indenture Trustee's Application for Instructions from the Issuer......................72
ARTICLE VIII NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER AND BENEFICIARY
Section 8.01 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders................73
Section 8.02 Preservation of Information; Communications to Noteholders............................73
Section 8.03 Reports by Indenture Trustee..........................................................74
Section 8.04 Meetings of Noteholders; Amendments and Waivers.......................................75
Section 8.05 Reports by Issuer to the Commission...................................................77
Section 8.06 Monthly Noteholders' Statement........................................................78
Section 8.07 Payment Instruction to Master Trust...................................................78
ARTICLE IX INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND SERVICING AGREEMENT
AND AMENDMENTS TO THE TRUST AGREEMENT
Section 9.01 Supplemental Indentures and Amendments Without Consent of Noteholders.................79
Section 9.02 Supplemental Indentures with Consent of Noteholders...................................81
Section 9.03 Execution of Amendments and Indenture Supplements.....................................82
Section 9.04 Effect of Amendments and Indenture Supplements........................................82
Section 9.05 Conformity with Trust Indenture Act...................................................83
Section 9.06 Reference in Notes to Indenture Supplements...........................................83
Section 9.07 Amendments to the Pooling and Servicing Agreement.....................................83
Section 9.08 Amendments to the Trust Agreement.....................................................84
ARTICLE X REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 10.01 Payment of Principal and Interest.....................................................85
Section 10.02 Maintenance of Office or Agency.......................................................85
Section 10.03 Money for Note Payments to be Held in Trust...........................................85
Section 10.04 Statement as to Compliance............................................................87
Section 10.05 Legal Existence.......................................................................87
Section 10.06 Further Instruments and Acts..........................................................87
Section 10.07 Compliance with Laws..................................................................88
Section 10.08 Notice of Events of Default...........................................................88
Section 10.09 Certain Negative Covenants............................................................88
Section 10.10 No Other Business.....................................................................88
Section 10.11 Rule 144A Information.................................................................88
Section 10.12 Performance of Obligations; Servicing of Receivables..................................89
Section 10.13 Issuer May Consolidate, Etc., Only on Certain Terms...................................89
Section 10.14 Successor Substituted.................................................................91
Section 10.15 Guarantees, Loans, Advances and Other Liabilities.....................................91
Section 10.16 Capital Expenditures..................................................................91
Section 10.17 Restricted Payments...................................................................92
Section 10.18 No Borrowing..........................................................................92
ARTICLE XI EARLY AMORTIZATION OF NOTES
Section 11.01 Applicability of Article..............................................................93
Section 11.02 Optional Repurchase...................................................................94
Section 11.03 Notice................................................................................95
ARTICLE XII MISCELLANEOUS
Section 12.01 No Petition...........................................................................96
Section 12.02 Trust Obligations.....................................................................96
Section 12.03 Limitations on Liability..............................................................96
Section 12.04 Tax Treatment.........................................................................97
Section 12.05 Actions Taken by the Issuer...........................................................97
Section 12.06 Alternate Payment Provisions..........................................................97
Section 12.07 Termination of Issuer.................................................................97
Section 12.08 Final Distribution....................................................................97
Section 12.09 Termination Distributions.............................................................98
Section 12.10 Derivative Counterparty, Supplemental Credit Enhancement Provider and Supplemental
Liquidity Provider as Third-Party Beneficiary.........................................98
Section 12.11 Notices...............................................................................99
EXHIBITS
EXHIBIT A FORM OF INVESTMENT LETTER
EXHIBIT B-1 FORM OF CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO THE INDENTURE TRUSTEE BY EUROCLEAR
OR CLEARSTREAM FOR DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
EXHIBIT B-2 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BY A BENEFICIAL OWNER
OF NOTES WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED INSTITUTIONAL BUYERS
EXHIBIT B-3 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BY A BENEFICIAL OWNER
OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
______________________________
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE PROVISIONS*
Trust Indenture
Act Section Indenture Section
310(a)(1) 5.11
(a)(2) 5.11
(a)(3) 5.10
(a)(4) Not Applicable
(a)(5) 5.11
(b) 7.08, 7.10(d)(i)
(c) Not Applicable
311(a) 7.13
(b) 5.12
(c) Not Applicable
312(a) 8.03, 6.02(a)
(b) 6.02(b)
(c) 6.02(c)
313(a) 6.04
(b) 8.03(c)
(c) 8.03, 8.03(c)
(d) 6.04
314(a) 3.09, 7.03(a)
(b) 3.06
(c)(1) 2.11, 8.09(c), 12.01(a)
(c)(2) 2.11, 8.09(c), 12.01(a)
(c)(3) 2.11, 8.09(c), 12.01(a)
(d)(1) 2.11, 8.09(c), 12.01(b)
(d)(2) Not Applicable
(d)(3) Not Applicable
(e) 11.01(a)
315(a) 5.01(b)
(b) 5.02
(c) 5.01(c)
(d) 5.01(d)
(d)(1) 5.01(d)
(d)(2) 5.01(d)
(d)(3) 5.01(d)
(e) 5.14
316(a)(1)(A) 5.12
316(a)(1)(B) 5.13
316(a)(2) Not Applicable
316(b) 5.08
317(a)(1) 5.04
317(a)(2) 5.04(d)
317(b) 5.04(a)
318(a) 11.07
__________________________________________________________________
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within indenture.
This AMENDED AND RESTATED INDENTURE, dated as of October 15,
2004 (this "Indenture"), between CHASE ISSUANCE TRUST, a statutory business
trust organized under the laws of the State of Delaware (the "Issuer"), having
its principal office at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, in its capacity as Indenture Trustee (the "Indenture Trustee"), is
made and entered into as of October 15, 2004.
RECITALS OF THE ISSUER
WHEREAS, the Issuer and the Indenture Trustee have heretofore
executed and delivered an Indenture, dated as of May 1, 2002 (as amended,
supplemented or otherwise modified, the "Original Indenture"), by and between
the Issuer and the Indenture Trustee;
WHEREAS, the Issuer and the Indenture Trustee desire to amend
and restate the Original Indenture to read in its entirety as set forth below;
WHEREAS, all conditions precedent to the execution of this
Indenture have been complied with;
NOW, THEREFORE, the Issuer and the Indenture Trustee hereby
agree that effective on and as of the date hereof, the Original Indenture is
hereby amended and restated in its entirety as follows:
PRELIMINARY STATEMENT
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
Pursuant to an Asset Pool Supplement, the Issuer shall grant
to the Collateral Agent (the "Secured Party") for the related Asset Pool for
the benefit and security of (a) the Noteholders secured by such Asset Pool, (b)
the Indenture Trustee, in its individual capacity and (c) the Collateral Agent,
in its individual capacity, a security interest in all of its right, title and
interest, whether now owned or hereafter acquired, in and to, the Collateral
specified in the related Asset Pool Supplement.
The security interest in the Collateral designated for
inclusion in an Asset Pool is granted to secure the Notes issued with respect
to that Asset Pool (and the obligations under this Indenture, the related Asset
Pool Supplement and the related Indenture Supplement) equally and ratably
without prejudice, priority or distinction between any Note and any other Note
that is expressly secured by such Asset Pool by reason of difference in time of
issuance or otherwise, except as otherwise expressly provided in this
Indenture, or in the Indenture Supplement which establishes any Series, Class
or Tranche of Notes, and to secure (i) the payment of all amounts due on such
Notes in accordance with their terms, (ii) the payment of all other sums
payable by the Issuer under this Indenture or any Indenture Supplement relating
to such secured Notes and (iii) compliance by the Issuer with the provisions of
this Indenture or any Indenture Supplement or any Asset Pool Supplement
relating to such Notes. This Indenture, as may be supplemented, including by
each Asset Pool Supplement, is a security agreement within the meaning of the
UCC.
The Indenture Trustee acknowledges the grant of such Security
Interest, and agrees to perform the duties herein such that the interests of
the Noteholders secured by such Asset Pool may be adequately and effectively
protected.
Particular Notes, Derivative Agreements, Supplemental Credit
Enhancement Agreements and Supplemental Liquidity Agreements will benefit from
the Security Interest to the extent (and only to the extent) proceeds of and
distributions on the Collateral are allocated for their benefit pursuant to
this Indenture, the applicable Asset Pool Supplement and the applicable
Indenture Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms
and conditions upon which the Notes 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 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 in respect of
Derivative Agreements, Supplemental Credit Enhancement Agreements or
Supplemental Liquidity Agreements, as applicable, is limited in recourse as set
forth in Section 6.11.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions. For all purposes of this Indenture
and of any Indenture Supplement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) With respect to any Series, all terms used
herein and not otherwise defined herein shall have meanings ascribed to them in
the Trust Agreement, the Transfer and Servicing Agreement, the related Asset
Pool Supplement or the related Indenture Supplement, as applicable.
(b) All terms defined in this Indenture shall have
the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Indenture and in any certificate
or other document made or delivered pursuant hereto or thereto, accounting
terms not defined in this Indenture or in any such certificate or other
document, and accounting terms partly defined in this Indenture or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms in this Indenture or in any such certificate or
other document are inconsistent with the meanings of such terms under GAAP, the
definitions contained in this Indenture or in any such certificate or other
document shall control.
(d) Any reference to each Rating Agency shall only
apply to a specific rating agency if such rating agency is then rating any
Outstanding Series, Class or Tranche of Notes.
(e) Unless otherwise specified, references to any
amount as on deposit or outstanding on any particular date shall mean such
amount at the close of business on such day.
(f) The words "hereof," "herein," "hereunder" and
words of similar import when used in this Indenture shall refer to this
Indenture as a whole and not to any particular provision of this Indenture;
references to any subsection, Section, clause, Schedule or Exhibit are
references to subsections, Sections, clauses, Schedules and Exhibits in or to
this Indenture unless otherwise specified; the term "including" means
"including without limitation"; references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; references to any Person include that Person's successors
and assigns; and references to any agreement refer to such agreement, as
amended, supplemented or otherwise modified from time to time.
(g) Whenever this Indenture refers to a provision of
the TIA, the provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
Commission rule have the meaning assigned to them by such definitions.
Notwithstanding anything to the contrary contained herein, if it is
not necessary for this Indenture to be qualified under the TIA, then
all references to the TIA hereunder shall be inapplicable to this
Indenture.
(h) In the event that the UCC, as in effect on the date
hereof, is revised, any reference herein to specific sections of the UCC shall
be deemed to be references to any such successor sections.
(i) Whenever used in this Indenture, the following words and
phrases shall have the following meanings, and the definitions of such terms
and phrases are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as the neuter genders of such terms:
"Act" has, when used with respect to any Noteholder, the
meaning specified in Section 1.04(a).
"Action" has, when used with respect to any Noteholder, the
meaning specified in Section 1.04(a).
"Adjusted Outstanding Dollar Principal Amount" means at any
time during a Monthly Period with respect to any Series, Class or Tranche of
Notes, the Outstanding Dollar Principal Amount of all Outstanding Notes of such
Series, Class or Tranche of Notes at such time, less any funds on deposit in
the Principal Funding Account or the related Sub-Account, as applicable, for
the benefit of such Series, Class or Tranche of Notes at such time.
"Adverse Effect" means, whenever used in this Indenture with
respect to any Series, Class or Tranche of Notes with respect to any Action,
that such Action will at the time of its occurrence (a) result in the
occurrence of an Early Amortization Event or Event of Default relating to such
Series, Class or Tranche of Notes, as applicable, (b) have a material adverse
effect on the amount of funds available to be distributed to the Noteholders of
any such Series, Class or Tranche of Notes pursuant to this Indenture or on the
timing of such distributions, or (c) adversely affect the security interest of
the applicable Collateral Agent in the Collateral securing the Outstanding
Notes in the related Asset Pool unless otherwise permitted by this Indenture or
any related Asset Pool Supplement.
"Affiliate" means, with respect to any specified Person, 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.
"Aggregate Remaining Master Trust Level Required Amount" has,
with respect to any Unapplied Excess Finance Charge Sharing Collateral
Certificate, the meaning specified in the related Series Supplement.
"Asset Pool" means a pool of Collateral designated for
inclusion in a particular Asset Pool pursuant to an Asset Pool Supplement, that
secures a particular Series, Class or Tranche of Notes or more than one Series,
Class or Tranche of Notes as specified in the applicable Indenture Supplements
for each such Series, Class or Tranche of Notes.
"Asset Pool Supplement" means, with respect to any Asset
Pool, a supplement to this Indenture, executed and delivered in conjunction
with the first issuance of Notes secured by that Asset Pool, including all
amendments thereof and supplements thereto.
"Authenticating Agent" means any Person authorized by the
Indenture Trustee to authenticate Notes under Section 7.14.
"Authorized Newspaper" means, with respect to any Series,
Class or Tranche of Notes, publication in the newspaper of record specified in
the applicable Indenture Supplement for that Series, Class or Tranche of Notes,
or if and so long as Notes of such Series, Class or Tranche are listed on any
securities exchange and that exchange so requires, in the newspaper of record
required by the applicable securities exchange, printed in any language
specified in the applicable Indenture Supplement or satisfying the requirements
of such exchange.
"Available Finance Charge Collections" means, for any Monthly
Period, (a) with respect to the Noteholders, the Finance Charge Collections
paid to the Issuer and allocated to the Noteholders, and (b) with respect to
any Series, Class or Tranche of Notes, the amount of collections in clause (a)
allocated to such Series, Class or Tranche of Notes, as applicable, plus
investment earnings allocable to the amounts on deposit in the Collection
Account and Excess Funding Account allocable to such Series, Class or Tranche
of Notes, plus any other amounts, or allocable portion thereof, to be treated
as Available Finance Charge Collections with respect to such Series, Class or
Tranche of Notes, subject to the applicable Indenture Supplement.
"Available Principal Collections" means, for any Monthly
Period, (a) with respect to the Noteholders, the Principal Collections paid to
the Issuer and allocated to the Noteholders, and (b) with respect to any
Series, Class or Tranche of Notes, (i) the amount of collections in clause (a)
allocated to such Series, Class or Tranche of Notes, as applicable, plus (ii)
any other amounts, or allocable portion thereof, to be treated as Available
Principal Collections with respect to such Series, Class or Tranche of Notes,
subject to the applicable Indenture Supplement.
"Bearer Note" means a Note in bearer form.
"Business Day" means, unless otherwise specified in the
Indenture Supplement for any Series, Class or Tranche of Notes, 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, Minneapolis,
Minnesota or Newark, Delaware (or, with respect to any Series, Class or
Tranche, any additional city specified in the related Indenture Supplement),
are authorized or obligated by law, executive order or governmental decree to
be closed.
"Certificate of Authentication" means the certificate of
authentication of the Indenture Trustee, the form of which is described in
Section 2.03, or the alternate certificate of authentication of the
Authenticating Agent, the form of which is described in Section 7.14.
"Chase USA" means Chase Manhattan Bank USA, National
Association, a national banking association.
"Class" means, with respect to any Note, the class specified
in the applicable Indenture Supplement.
"Class C Reserve Account" means, for any Notes, the Bank
Account and any Sub-Account thereof established and maintained as described in
the related Indenture Supplement.
"Collateral Certificate Finance Charge Shortfall Allocation"
means, for any Note Transfer Date, with respect to each Unapplied Master Trust
Level Excess Finance Charge Sharing Collateral Certificate relating to any
Shared Excess Available Finance Charge Collections Group, an amount equal to:
(a) if the aggregate amount of all Unapplied Master
Trust Level Excess Finance Charge Collections for all Unapplied Master Trust
Level Excess Finance Charge Sharing Collateral Certificates for such Note
Transfer Date is less than or equal to the sum of the Remaining Series Finance
Charge Shortfalls for all Series in such Group for such Note Transfer Date, the
amount of Unapplied Master Trust Level Excess Finance Charge Collections with
respect to such Unapplied Master Trust Level Excess Finance Charge Sharing
Collateral Certificate for such Note Transfer Date; or
(b) if the aggregate amount of all Unapplied Master Trust
Level Excess Finance Charge Collections for all Unapplied Master Trust Level
Excess Finance Charge Sharing Collateral Certificates for such Note Transfer
Date is greater than the sum of the Remaining Series Finance Charge Shortfalls
for all Series in such Group for such Note Transfer Date, the product of (i)
the sum of the Remaining Series Finance Charge Shortfalls for all Series in
such Group for such Note Transfer Date and (b) a fraction, (x) the numerator of
which is the Unapplied Master Trust Level Excess Finance Charge Collections
with respect to such Unapplied Master Trust Level Excess Finance Charge Sharing
Collateral Certificate for such Note Transfer Date and (y) the denominator of
which is the aggregate amount of all Unapplied Master Trust Level Excess
Finance Charge Collections for all Unapplied Master Trust Level Excess Finance
Charge Sharing Collateral Certificates for such Note Transfer Date.
"Collateral Certificate Principal Shortfall Allocation"
means, for any Note Transfer Date, with respect to each Unapplied Master Trust
Level Principal Sharing Collateral Certificate in any Asset Pool, an amount
equal to
(a) if the aggregate amount of all Unapplied Master Trust
Level Principal Collections for all Unapplied Master Trust Level Principal
Sharing Collateral Certificates in such Asset Pool for such Note Transfer Date
is less than or equal to the sum of the Remaining Series Principal Shortfalls
for all Series secured by such Asset Pool, the amount of Unapplied Master Trust
Level Principal Collections with respect to such Unapplied Master Trust Level
Principal Sharing Collateral Certificate for such Note Transfer Date; or
(b) if the aggregate amount of all Unapplied Master Trust
Level Principal Collections for all Unapplied Master Trust Level Principal
Sharing Collateral Certificates in such Asset Pool for such Note Transfer Date
is greater than the sum of the Remaining Series Principal Shortfalls for all
Series secured by such Asset Pool for such Note Transfer Date, the product of
(i) the sum of the Remaining Series Principal Shortfalls for all Series secured
by such Asset Pool for such Note Transfer Date and (b) a fraction, (x) the
numerator of which is the Unapplied Master Trust Level Principal Collections
with respect to such Unapplied Master Trust Level Principal Sharing Collateral
Certificate for such Note Transfer Date and (y) the denominator of which is the
aggregate amount of all Unapplied Master Trust Level Principal Collections for
all Unapplied Master Trust Level Principal Sharing Collateral Certificates in
such Asset Pool for such Note Transfer Date.
"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 at such date.
"Corporate Trust Office" means the principal office of the
Indenture Trustee in Minneapolis, Minnesota at which at any particular time its
corporate trust business will be principally administered, which office at the
date hereof is located at MAC X0000-000, Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000.
"Depository" means a U.S. Depository or a Foreign Depository,
as the case may be.
"Derivative Agreement" means any currency, interest rate or
other swap, cap, collar, guaranteed investment contract or other derivative
agreement.
"Derivative Counterparty" means any party to any Derivative
Agreement other than the Issuer or the Indenture Trustee.
"Discount Note" means a Note that provides for an amount less
than the Stated Principal Amount (but not less than the Initial Dollar
Principal Amount) thereof to be due and payable upon the occurrence of an Early
Amortization Event or mandatory redemption or the occurrence of an Event of
Default and the acceleration of such Note, in each case before the Scheduled
Principal Payment Date of the applicable Note.
"Early Amortization Event" has the meaning specified in
Section 11.01.
"Effective Date" means the date on which this Indenture is
executed and delivered by the parties hereto.
"Entity" means any Person other than an individual or
government (including any agency or political subdivision thereof).
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Date" means, with respect to any Tranche of Notes,
the latest of:
(a) in the case of exchanges of beneficial interests in
Temporary Global Notes for beneficial interests in Permanent Global Notes in
registered form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in
Temporary Global Notes for beneficial interests in Permanent Global Notes in
bearer form, the date of presentation of certification of non-United States
beneficial ownership (as described in Section 2.05); and
(c) the earliest date on which such an exchange of a
beneficial interest in a Temporary Global Note for a beneficial interest in a
Permanent Global Note is permitted by applicable law.
"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.
"Foreign Currency" means (a) a currency other than Dollars,
or (b) denominated in a currency other than Dollars.
"Foreign Currency Note" means a Note denominated in a Foreign
Currency.
"Foreign Depository" means the Person specified in the
applicable Indenture Supplement, in its capacity as depository for the accounts
of any clearing agencies located outside the United States.
"GAAP" means generally accepted accounting principles in the
United States of America in effect from time to time.
"Global Note" means any Note issued pursuant to Section 2.04.
"Group" means any one or more Series of Notes which are
specified as belonging to a common Group (including any Shared Excess Available
Finance Charge Collections Group or any group established by an Indenture
Supplement) in the applicable Indenture Supplement. A particular Series may be
included in more than one Group if the Indenture Supplement for such Series so
provides.
"Holder" means, when used with respect to any Note, a
Noteholder.
"Indenture" or "this Indenture" means this Amended and
Restated Indenture, dated as of October 15, 2004, as originally executed and as
amended, supplemented, restated or otherwise modified from time to time by one
or more indentures supplemental hereto, including Indenture Supplements for the
issuance of Series of Notes and Asset Pool Supplements for the establishment of
Asset Pools entered into pursuant to the applicable provisions hereof.
"Indenture Supplement" means, with respect to any Series of
Notes, a supplement to this Indenture, executed and delivered in conjunction
with the issuance of such Series of Notes pursuant to Section 3.01, together
with any applicable Terms Document for any Classes and Tranches of Notes
belonging to such Series related to such Indenture Supplement and any amendment
to the Indenture Supplement executed pursuant to Section 9.01 or 9.02, and, in
either case, including all amendments thereof and supplements thereto.
"Indenture Trustee" means the Person named as the Indenture
Trustee in the first paragraph of this Indenture until a successor Indenture
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Indenture Trustee" means and includes each Person
who is then an Indenture Trustee hereunder. If at any time there is more than
one such Person, "Indenture Trustee" as used with respect to the Notes of any
Series, Class or Tranche means the Indenture Trustee with respect to Notes of
that Series, Class or Tranche.
"Indenture Trustee Authorized Officer" means, when used with
respect to the Indenture Trustee, any vice president, any assistant vice
president, the treasurer, any assistant treasurer, any senior trust officer or
trust officer, or any other officer of the Indenture 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.
"Initial Dollar Principal Amount" means (a) unless otherwise
specified in the applicable Indenture Supplement, with respect to a Series,
Class or Tranche of Dollar Interest-bearing Notes, the aggregate initial
principal amount of the Outstanding Notes of such Series, Class or Tranche plus
the aggregate initial principal amount of any additional Notes of such Series,
Class or Tranche, and (b) with respect to a Series, Class or Tranche of
Discount Notes or Foreign Currency Notes, the amount specified in the
applicable Indenture Supplement as the Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at a
stated or computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Funding Account" means, with respect to any Notes,
the Bank Account and any Sub-Account thereof established and maintained as
described in the related Indenture Supplement.
"Interest Payment Date" means, with respect to any Series,
Class or Tranche of Notes, the scheduled due date of any payment of interest on
such Notes, as specified in the applicable Indenture Supplement, or if such day
is not a Business Day, the next following Business Day, unless such day is in
the next calendar month, in which case the Interest Payment Date, unless
otherwise specified in the related Indenture Supplement, will be the last
Business Day of the current calendar month; provided, however, that upon the
acceleration of a Series, Class or Tranche of Notes following an Event of
Default or upon the occurrence of an Early Amortization Event, or other
optional or mandatory redemption of that Series, Class or Tranche of Notes,
each Monthly Principal Accrual Date will be an Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
"Invested Amount" has, with respect to any Collateral
Certificate, the meaning specified in the Series Supplement for the applicable
Collateral Certificate and with respect to any other Investor Certificate, the
meaning specified in the applicable Pooling and Servicing Agreement and the
related Series Supplement.
"Investor Certificate" means an investor certificate, and not
a seller certificate or transferor certificate, issued pursuant to a Pooling
and Servicing Agreement and related Series Supplement.
"Investor Certificateholder" means the holder of record of an
Investor Certificate.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Issuer" has the meaning specified in the first paragraph of
this Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory
of the Owner Trustee, or (b) the chairman or vice-chairman of the board of
directors, chairman or vice-chairman of the executive committee of the board of
directors, the president, any vice-president, the secretary, any assistant
secretary, the treasurer, or any assistant treasurer, in each case of the
Beneficiary, or any other officer or employee of the Beneficiary who is
authorized to act on behalf of the Issuer.
"Issuer Certificate" means a certificate (including an
Officer's Certificate) signed in the name of an Issuer Authorized Officer, or
the Issuer by an Issuer Authorized Officer and, in each case delivered to the
Indenture Trustee relating to, among other things, the issuance of a new
Series, Class or Tranche of Notes. Wherever this Indenture requires that an
Issuer Certificate be signed also by an accountant or other expert, such
accountant or other expert (except as otherwise expressly provided in this
Indenture) may be an employee of the Beneficiary.
"Issuer Tax Opinion" means, with respect to any Action, an
Opinion of Counsel to the effect that, for United States federal income tax
purposes, (a) such Action will not cause any Outstanding Series, Class or
Tranche of Notes that were characterized as debt at the time of their issuance
to be characterized as other than debt, (b) such Action will not cause the
Issuer to be treated as an association (or publicly traded partnership) taxable
as a corporation and (c) such Action will not cause or constitute an event in
which gain or loss would be recognized by any Holder of any such Notes.
"Legal Maturity Date" means, with respect to a Series, Class
or Tranche of Notes, the date specified in the Indenture Supplement, for such
Notes as the fixed date on which the principal of such Series, Class or Tranche
of Notes is due and payable.
"Majority Holders" means, with respect to any Series, Class
or Tranche of Notes or all Outstanding Notes, the Holders of greater than 50%
in Outstanding Dollar Principal Amount of the Outstanding Notes of that Series,
Class or Tranche or of all Outstanding Notes, as the case may be.
"Master Trust" means a master trust or other securitization
special purpose entity for which Chase USA or an Affiliate of Chase USA acts as
transferor or seller or servicer, established pursuant to a Pooling and
Servicing Agreement.
"Master Trust Tax Opinion" means, with respect to any Action,
an Opinion of Counsel to the effect that, for United States federal income tax
purposes, (a) such Action will not cause any Investor Certificates that were
characterized as debt at the time of their issuance to be characterized as
other than debt and (b) such Action will not cause any Master Trust to be
treated as an association (or publicly traded partnership) taxable as a
corporation.
"Monthly Noteholders' Statement" means, with respect to any
Series of Notes, a report, the form of which is attached as an exhibit to the
related Indenture Supplement.
"Monthly Period" means the period from and including the
first day of a calendar month to and including the last day of a calendar
month.
"Monthly Principal Accrual Date" has, with respect to any
Class or Tranche of Notes, the meaning specified in the related Indenture
Supplement.
"Nominal Liquidation Amount" means, with respect to any
Outstanding Series, Class or Tranche of Notes, an amount determined in
accordance with the applicable Indenture Supplement. The Nominal Liquidation
Amount for a Series of Notes will be the sum of the Nominal Liquidation Amounts
of all of the Classes or Tranches of Notes of such Series.
"Note" or "Notes" means any note or notes of any Series,
Class or Tranche authenticated and delivered from time to time under this
Indenture.
"Note Owner" means the beneficial owner of an interest in a
Global Note.
"Note Rating Agency" means, with respect to any Outstanding
Series, Class or Tranche of Notes, each statistical note rating agency selected
by the Issuer to rate such Notes.
"Note Register" has the meaning specified in Section 3.05.
"Note Registrar" means the Person who keeps the Note Register
specified in Section 3.05.
"Noteholder" means a Person in whose name a Note is
registered in the Note Register or the bearer of any Bearer Note (including a
Global Note in bearer form), as the case may be.
"Officer's Certificate" means a certificate signed by the
Beneficiary or the Owner Trustee and delivered to the Indenture Trustee.
Wherever this Indenture requires that an Officer'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 an employee of the
Beneficiary.
"Opinion of Counsel" means a written opinion of counsel
acceptable to the Indenture Trustee, who may, except as otherwise expressly
provided in this Indenture, be an employee of or of counsel to the Issuer, the
Beneficiary or any of their Affiliates.
"Outstanding" means, with respect to all Notes, all Notes in
all Asset Pools and, with respect to a Note or with respect to Notes of any
Series, Class or Tranche, as of the date of determination, all such Notes
theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation pursuant to Section
3.09, or canceled by the Issuer, Chase USA or any Affiliate thereof and
delivered to the Indenture Trustee pursuant to Section 3.09;
(b) any Notes for whose full payment (including principal and
interest) or redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given if required pursuant to this Indenture
and the related Indenture Supplement, or provision therefor satisfactory to the
Indenture Trustee has been made;
(c) any Notes which are canceled pursuant to Section 5.03;
and
(d) any 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 3.06 (except with respect to
any such Note as to which proof satisfactory to the Indenture Trustee is
presented that such Note is held by a person in whose hands such Note is a
legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits,
allocations, reallocations or payments to be made, unless the context clearly
requires otherwise, references to "Notes" will be deemed to be references to
"Outstanding Notes." In determining whether the Holders of the requisite
principal amount of such Outstanding Notes have taken any Action hereunder, and
for purposes of Section 8.04, Notes beneficially owned by the Issuer or Chase
USA or any Affiliate of the Issuer or Chase USA will be disregarded and deemed
not to be Outstanding. In determining whether the Indenture Trustee will be
protected in relying upon any such Action, only Notes which an Indenture
Trustee Authorized Officer knows to be owned by the Issuer or Chase USA or any
Affiliate of the Issuer or Chase USA will be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee demonstrates to the satisfaction of the Indenture Trustee the pledgee's
right to act as owner with respect to such Notes and that the pledgee is not
the Issuer, Chase USA or any other obligor upon the Notes or any Affiliate of
the Issuer, Chase USA or such other obligor.
"Outstanding Dollar Principal Amount" means at any time:
(a) with respect to any Series, Class or Tranche of
non-Discount Notes, the aggregate Initial Dollar Principal Amount of the
Outstanding Notes of such Series, Class or Tranche at such time, less the
amount of any withdrawals from the Principal Funding Account or Sub-Account, as
applicable, for such Series, Class or Tranche of Notes for payment of principal
to the Holders of such Series, Class or Tranche of Notes or the applicable
Derivative Counterparty, pursuant to the related Indenture Supplement, and
(b) with respect to any Series, Class or Tranche of Discount
Notes, an amount of the Outstanding Notes of such Series, Class or Tranche
calculated by reference to the applicable formula specified in the applicable
Indenture Supplement, taking into account the amount and timing of payments of
principal made to the Holders of such Series, Class or Tranche or to the
applicable Derivative Counterparty and accretions of principal, each pursuant
to the related Indenture Supplement.
"Paying Agent" means any Person authorized by the Issuer to
pay the principal of or interest on any Notes on behalf of the Issuer, as
provided in Section 10.02 hereof.
"Payment Date" means, with respect to any Series, Class or
Tranche of Notes, the applicable Principal Payment Date or Interest Payment
Date.
"Payment Instruction" means, with respect to any Series of
Notes, an instruction, the form of which is attached as an exhibit to the
related Indenture Supplement.
"Performing" means, with respect to any Derivative Agreement,
no payment default or repudiation of performance by a Derivative Counterparty
has occurred, and such Derivative Agreement has not been terminated.
"Permanent Global Note" is defined in Section 2.05.
"Permitted Investments" means, unless otherwise provided in
the Indenture Supplement with respect to any Series, Class or Tranche of Notes:
(a) instruments, investment property or other property
consisting of:
(i) obligations of or fully guaranteed by the United
States of America;
(ii) time deposits, promissory notes or certificates
of deposit of any depository institution or trust company incorporated under
the laws of the United States of America or any state thereof (or domestic
branches of foreign depository institutions or trust companies) and subject to
supervision and examination by federal or state banking or depository
institution authorities; provided, however, that at the time of the Indenture
Trustee's investment or contractual commitment to invest therein, the
certificates of deposit or short-term deposits of such depository institution
or trust company shall have a credit rating from Moody's and Standard & Poor's
of "P-1" and "A-1+," respectively, and, if rated by Fitch, "F1+" from Fitch;
(iii) commercial paper (including but not limited to
asset backed commercial paper) having, at the time of the Indenture Trustee's
investment or contractual commitment to invest therein, a rating from Moody's
and Standard & Poor's of "P-1" and "A-1+" respectively, and, if rated by Fitch,
"F1+" from Fitch;
(iv) bankers' acceptances issued by any depository
institution or trust company described in clause (a)(ii) above; and
(v) investments in money market funds rated "AAA-m"
or "AAA-mg" by Standard & Poor's and "Aaa" by Moody's and, if rated by Fitch
"AAA-V1+" from Fitch, or otherwise approved in writing by each Note Rating
Agency;
(b) demand deposits in the name of the Indenture Trustee in
any depository institution or trust company referred to in clause (a)(ii)
above;
(c) uncertificated securities that are registered in the name
of the Indenture Trustee upon books maintained for that purpose by the issuer
thereof and identified on books maintained for that purpose by the Indenture
Trustee as held for the benefit of the Noteholders, and consisting of shares of
an open end diversified investment company which is registered under the
Investment Company Act, and which (i) invests its assets exclusively in
obligations of or guaranteed by the United States of America or any
instrumentality or agency thereof having in each instance a final maturity date
of less than one year from their date of purchase or other Permitted
Investments, (ii) seeks to maintain a constant net asset value per share, (iii)
has aggregate net assets of not less than $100,000,000 on the date of purchase
of such shares and (iv) with respect to which each Note Rating Agency confirms
in writing that such investment will not cause a Ratings Effect; and
(d) any other investment if each Note Rating Agency confirms
in writing that such investment will not cause a Ratings Effect.
"Person" means any individual, corporation, estate,
partnership, limited liability company, limited liability partnership, joint
venture, association, joint-stock company, business trust, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to any Series, Class
or Tranche of Notes issued hereunder, the city or political subdivision so
designated with respect to such Series, Class or Tranche of Notes in accordance
with the provisions of Section 3.01.
"Pooling and Servicing Agreement" means a pooling and
servicing agreement, indenture or other agreement for the issuance of
securities from time to time from a Master Trust and the servicing of the
receivables in such Master Trust.
"Predecessor Notes" means, with respect to any particular
Note, every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition,
any Note authenticated and delivered under Section 3.06 in lieu of a mutilated,
lost, destroyed or stolen Note will be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Funding Account" means, with respect to any Notes,
the Bank Account and any Sub-Account thereof established and maintained as
described in the related Indenture Supplement.
"Principal Payment Date" means, with respect to any Series,
Class or Tranche of Notes, each Scheduled Principal Payment Date, or upon the
acceleration of such Series, Class or Tranche of Notes following an Event of
Default or upon the occurrence of an Early Amortization Event, or other
optional or mandatory redemption of such Series, Class or Tranche of Notes,
each Monthly Principal Accrual Date.
"Qualified Bank Account" means either (a) a segregated
account (including a securities account) with a Qualified 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 or the District of Columbia (or any domestic branch of a
foreign bank having corporate trust powers and acting as Trustee for funds
deposited in such account), so long as any of the securities of such depository
institution shall have a credit rating from each applicable Note Rating Agency
in one of its generic rating categories which signifies investment grade.
"Qualified 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 Chase USA, 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 Chase USA in the case of any Account other than the
Collection Account), either (x) a long-term unsecured debt rating of AAA by
Standard & Poor's or (y) a certificate of deposit rating of A-1+ by Standard &
Poor's. If so qualified, the Indenture Trustee, the Owner Trustee, Chase USA or
an Affiliate of any of the foregoing may be considered a Qualified Institution
for the purposes of this definition.
"Ratings Effect" means a reduction, qualification with
negative implications or withdrawal of any then current rating of the Notes.
"Record Date" means, for the interest or principal payable on
any Note on any applicable Payment Date, the last day of the month before the
related Interest Payment Date or Principal Payment Date, as applicable, unless
otherwise specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Subordinated Amount" means, with respect to any
Tranche of a Senior Class of Notes, the amount specified in the related
Indenture Supplement.
"Remaining Series Finance Charge Shortfall" has, for each
Series relating to any Shared Excess Available Finance Charge Collections
Group, the meaning specified in the related Indenture Supplement.
"Remaining Series Principal Shortfall" has, with respect to
any Series secured by an Asset Pool, the meaning specified in the related
Indenture Supplement.
"Scheduled Principal Payment Date" means, with respect to any
Series, Class or Tranche of Notes, the scheduled due date of any payment of
principal on such Notes, as specified in the related Indenture Supplement, or
if such day is not a Business Day, the next following Business Day, unless such
day is in the next calendar month, in which case such Scheduled Principal
Payment Date, unless otherwise specified in the related Indenture Supplement,
will be the last Business Day of the current calendar month.
"Secured Party" has the meaning specified in the Granting
Clause.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended from time to time.
"Security Interest" means the security interest granted
pursuant to the Granting Clause.
"Senior Class" has, with respect to a Class of Notes of any
Series, the meaning specified in the related Indenture Supplement.
"Series" means, with respect to any Note, the series
specified in the applicable Indenture Supplement.
"Series Available Finance Charge Collections Shortfalls" has,
with respect to any Shared Excess Available Finance Charge Collections Series,
the meaning specified in the related Indenture Supplement.
"Series Supplement" means a series supplement to a Pooling
and Servicing Agreement or similar document setting forth the terms of a
Collateral Certificate.
"Shared Excess Available Finance Charge Collections Series"
means a Series that, pursuant to the Indenture Supplement therefor, will share
certain Finance Charge Collections allocated to such Series with other Series
in the same Shared Excess Available Finance Charge Collections Group, as more
specifically specified in such Indenture Supplement.
"Shared Excess Available Finance Charge Collections Group"
means a Group of Series which have all been designated to share certain excess
Finance Charge Collections allocated to such Series with one another.
"Stated Principal Amount" has, with respect to any Note, the
meaning specified in the related Indenture Supplement or Terms Document.
"Sub-Account" means each portion of a Bank Account designated
as such pursuant to this Indenture, the related Indenture Supplement or the
applicable Asset Pool Supplement.
"Subordinated Class" has, with respect to a Class of Notes of
any Series, the meaning specified in the related Indenture Supplement.
"Subordinated Notes" means Notes of a Subordinated Class of a
Series.
"Supplemental Bank Account" means the trust account or
accounts designated as such and established pursuant to subsection 4.02(a).
"Supplemental Credit Enhancement Agreement" means a letter of
credit, cash collateral account or surety bond or other similar arrangement
with various credit enhancement providers which provides the benefit of one or
more additional forms of credit enhancement which is referenced in the
applicable Indenture Supplement for any Series, Class or Tranche of Notes in an
Asset Pool.
"Supplemental Credit Enhancement Provider" means any party to
any Supplemental Credit Enhancement Agreement other than the Issuer or the
Indenture Trustee.
"Supplemental Liquidity Agreement" means a liquidity facility
or other similar arrangements with various liquidity providers which provides
the benefit of additional liquidity for any Series, Class or Tranche of Notes
secured by an Asset Pool which is referenced in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Supplemental Liquidity Provider" means any party to any
Supplemental Liquidity Agreement other than the Issuer or the Indenture
Trustee.
"Temporary Global Note" has the meaning specified in Section
2.05.
"Terms Document" means, with respect to any Class or Tranche
of Notes, a supplement to the Indenture Supplement that establishes such Class
or Tranche.
"Tranche" means, with respect to any Class of Notes, Notes of
such Class which have identical terms, conditions and designation. Notes of a
single Tranche may be issued on different dates.
"Transfer and Servicing Agreement" means the Amended and
Restated Transfer and Servicing Agreement, dated as of October 15, 2004, among
Chase USA, as Transferor, Servicer and Administrator, the Issuer, and Xxxxx
Fargo Bank, National Association, as Indenture Trustee and Collateral Agent.
"Transfer Agent" means Xxxxx Fargo Bank, National Association.
"Trust Agreement" means the Second Amended and Restated Trust
Agreement, dated as of October 15, 2004, between Chase USA, as Transferor, and
Wilmington Trust Company, as Owner Trustee.
"Trust Indenture Act" 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 9.05.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant jurisdiction.
"Unapplied Excess Finance Charge Collections" means, for any
Note Transfer Date, with respect to each Shared Excess Available Finance Charge
Collections Group, the aggregate amount to be treated as "Unapplied Excess
Finance Charge Collections" from such Shared Excess Available Finance Charge
Collections Group for such Note Transfer Date pursuant to the Indenture
Supplements for all Series in such Shared Excess Available Finance Charge
Collections Group and Section 3.13 of the Indenture.
"Unapplied Excess Finance Charge Sharing Collateral
Certificate" means, with respect to each Shared Excess Available Finance Charge
Collections Group, each Collateral Certificate included in any Asset Pool that
is designated as an "Unapplied Excess Finance Charge Sharing Collateral
Certificate" with respect to such Shared Excess Available Finance Charge
Collections Group in the related Series Supplement.
"Unapplied Master Trust Level Excess Finance Charge
Collections" has, with respect to each Unapplied Master Trust Level Excess
Finance Charge Sharing Collateral Certificate, the meaning specified in the
related Series Supplement.
"Unapplied Master Trust Level Excess Finance Charge Sharing
Collateral Certificate" means, with respect to each Shared Excess Available
Finance Charge Collections Group, each Collateral Certificate included in any
Asset Pool that is designated as an "Unapplied Master Trust Level Excess
Finance Charge Sharing Collateral Certificate" with respect to such Shared
Excess Available Finance Charge Collections Group in the related Series
Supplement.
"Unapplied Master Trust Level Principal Collections" has,
with respect to each Unapplied Master Trust Level Principal Sharing Collateral
Certificate, the meaning specified in the related Series Supplement.
"Unapplied Master Trust Level Principal Sharing Collateral
Certificate" shall mean each Collateral Certificate included in any Asset Pool
that is designated as an "Unapplied Master Trust Level Principal Sharing
Collateral Certificate" with respect to such Asset Pool in the related Series
Supplement.
"United States Person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or any political subdivision
thereof, or an estate or trust the income of which is subject to United States
federal income taxation regardless of its source.
"U.S. Depository" means, unless otherwise specified by the
Issuer pursuant to Section 2.04, 2.06, or 3.01, with respect to Notes of any
Tranche issuable or issued as a Global Note within the United States, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Securities Exchange Act, or other
applicable statute or regulation.
Section 1.02 Compliance Certificates and Opinions. Upon any application or
request by the Issuer to the Indenture Trustee to take any action under any
provision of this Indenture, the Issuer will furnish to the Indenture Trustee
(i) an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Notwithstanding the provisions of Section 3.10 and of the
preceding paragraph, if all Notes of a Tranche are not to be originally issued
at one time, it will not be necessary to deliver the Issuer Certificate
otherwise required pursuant to Section 3.10 or the Officer's Certificate and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at
or before the time of authentication of each Note of such Tranche if such
documents are delivered at or prior to the authentication upon original
issuance of the first Note of such Tranche to be issued.
The Indenture Trustee may rely, as to authorization by the
Issuer of any Tranche of Notes, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Section 3.10 and this
Section 1.02, as applicable, in connection with the first authentication of
Notes of such Tranche.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (except for the written
statement required by Section 10.04) 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 1.03 Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, 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, or representation by,
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 1.04 Acts of Noteholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action (collectively, an "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. If Notes of a Series, Class or Tranche are issuable
in whole or in part as Bearer Notes, any Action provided by this Indenture to
be given or taken by such Noteholders may, alternatively, be embodied in and
evidenced by the record of such Noteholders voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Noteholders
duly called and held in accordance with the provisions of Section 8.04, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such Action will become effective when such instrument or
instruments or record are delivered to the Indenture Trustee, and, where it is
hereby expressly required, to the Issuer. Such instrument or instruments and
any such record (and the Action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Noteholders signing such
instrument or instruments and so voting at any meeting. Proof of execution of
any such instrument or of a writing appointing any such agent, or the holding
by any Person of a Note, will be sufficient for any purpose of this Indenture
and (subject to Section 7.01) conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section 1.04. The record of
any meeting of Noteholders shall be proved in the manner provided in Section
8.04.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit of a witness
to such execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by an officer of a corporation or a member of
a partnership, on behalf of such corporation or partnership, such certificate
or affidavit will also constitute sufficient proof of his 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 Indenture Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be
proved by the Note Register.
(ii) The ownership of Bearer Notes or
coupons will be proved by the production of such Bearer Notes or
coupons or by a certificate, satisfactory to the Issuer, executed, as
depository, by any bank, trust company, recognized securities dealer
or depository, wherever situated, satisfactory to the Issuer. Each
such certificate will be dated and will state that on the date thereof
a Bearer Note or coupon bearing a specified serial number was
deposited with or exhibited to such bank, trust company, recognized
securities dealer or depository by the Person named in such
certificate. Any such certificate may be issued in respect of one or
more Bearer Notes or coupons specified therein. The holding by the
Person named in any such certificate of any Bearer Note specified
therein will be presumed to continue for a period of one year from the
date of such certificate unless at the time of any determination of
such holding (A) another certificate bearing a later date issued in
respect of the same Bearer Note or coupon produced, (B) the Bearer
Note or coupon specified in such certificate is produced by some other
Person or (C) the Bearer Note or coupon specified in such certificate
has ceased to be Outstanding.
(d) The fact and date of execution of any such
instrument or writing, the authority of the Person executing the same and the
principal amount and serial numbers of Bearer Notes held by the Person so
executing such instrument or writing and the date of holding the same may also
be proved in any other manner which the Indenture Trustee deems sufficient; and
the Indenture Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section.
(e) If the Issuer will solicit from the Holders any
Action, the Issuer may, at its option, by an Officer's Certificate and
consistent with the Trust Indenture Act, 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
Indenture Trustee pursuant to Section 8.01 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.
(f) 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 Indenture Trustee or the Issuer in reliance thereon whether or not
notation of such Action is made upon such Note.
(g) Without limiting the foregoing, a Holder
entitled hereunder to take any Action hereunder with regard to any particular
Note may do so with regard to all or any part of the principal amount of such
Note or by one or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such principal amount.
Any notice given or Action taken by a Holder or its agents with regard to
different parts of such principal amount pursuant to this paragraph shall have
the same effect as if given or taken by separate Holders of each such different
part.
(h) Without limiting the generality of the
foregoing, unless otherwise specified pursuant to Section 3.01 or pursuant to
one or more Indentures Supplements, a Holder, including a Depository that is
the Holder of a Global Note, may make, give or take, by a proxy or proxies duly
appointed in writing, any Action provided in this Indenture to be made, given
or taken by Holders, and a Depository that is the Holder of a Global Note may
provide its proxy or proxies to the beneficial owners of interests in any such
Global Note through such Depository's standing instructions and customary
practices.
(i) The Issuer may fix a record date for the purpose
of determining the Persons who are beneficial owners of interests in any Global
Note held by a Depository entitled under the procedures of such Depository to
make, give or take, by a proxy or proxies duly appointed in writing, any Action
provided in this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or
take such Action, whether or not such Holders remain Holders after such record
date. No such Action shall be valid or effective if made, given or taken more
than 90 days after such record date.
Section 1.05 Notices, etc., to Indenture Trustee and Issuer.
Any Action of Noteholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Indenture
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
Indenture Trustee at its Corporate Trust Office, or the Issuer by the Indenture
Trustee or by any Noteholder will be sufficient for every purpose hereunder
(except as provided in subsection 6.01(c)) 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 Indenture Trustee by
the Issuer.
Section 1.06 Notices to Noteholders; Waiver
(a) Where this Indenture, any Indenture Supplement
or any Registered Note provides for notice to Registered Noteholders of any
event, such notice will be sufficiently given (unless otherwise herein, in such
Indenture Supplement or in such Registered Note expressly provided) if in
writing and mailed, first-class postage prepaid, sent by facsimile, sent by
electronic transmission or personally delivered to each Holder of a Registered
Note affected by such event, at such Noteholder's 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 Registered Noteholders is given by mail, facsimile, electronic
transmission or delivery neither the failure to mail, send by facsimile,
electronic transmission or deliver such notice, nor any defect in any notice so
mailed, to any particular Noteholders will affect the sufficiency of such
notice with respect to other Noteholders and any notice that is mailed, sent by
facsimile, electronic transmission or delivered in the manner herein provided
shall conclusively have been presumed to have been duly given.
Where this Indenture, any Indenture Supplement or
any Registered Note provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver will be the equivalent of such notice.
Waivers of notice by Registered Noteholders will be filed with the Indenture
Trustee, but such filing will not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular
mail service as a result of a strike, work stoppage or otherwise, it will be
impractical to mail notice of any event to any Holder of a Registered Note when
such notice is required to be given pursuant to any provision of this
Indenture, then any method of notification as will be satisfactory to the
Indenture Trustee and the Issuer will be deemed to be a sufficient giving of
such notice.
(c) No notice will be given by mail, facsimile,
electronic transmission or otherwise delivered to a Holder of Bearer Notes or
coupons in bearer form. In the case of any Series, Class or Tranche with
respect to which any Bearer Notes are Outstanding, any notice required or
permitted to be given to Holders of such Bearer Notes will be published in an
Authorized Newspaper within the time period prescribed in this Indenture or the
applicable Indenture Supplement.
(d) With respect to any Series, Class or Tranche of
Notes, the applicable Indenture Supplement may specify different or additional
means of giving notice to the Holders of the Notes of such Series, Class or
Tranche.
(e) Where this Indenture provides for notice to any
Note Rating Agency, failure to give such notice will not affect any other
rights or obligations created hereunder and will not under any circumstance
constitute an Adverse Effect.
Section 1.07 Conflict with Trust Indenture Act. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision will
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision will be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
Section 1.08 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 1.09 Successors and Assigns. All covenants and
agreements in this Indenture by the Issuer will bind its successors and
assigns, whether so expressed or not. All covenants and agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees and
agents of the Indenture Trustee.
Section 1.10 Separability. 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 1.11 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, the Collateral Agent, any
Authenticating Agent or Paying Agent, the Note Registrar, Derivative
Counterparties (to the extent specified in the applicable Derivative
Agreement), Supplemental Credit Enhancement Providers and Supplemental
Liquidity Providers (each, to the extent specified in the applicable
Supplemental Credit Enhancement Agreement or Supplemental Liquidity Agreement,
as applicable) 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 1.12 GOVERNING LAW. THIS INDENTURE WILL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 1.13 Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 1.14 Indenture Referred to in the Trust Agreement.
This is the Indenture referred to in the Trust Agreement.
Section 1.15 Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
[END OF ARTICLE I]
ARTICLE II
NOTE FORMS
Section 2.01 Forms Generally. The Notes will have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or the applicable Indenture Supplement
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 typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without 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 2.02 Forms of Notes. Each Note will be in one of the
forms approved from time to time by or pursuant to an Indenture Supplement.
Before the delivery of a Note to the Indenture Trustee for authentication in
any form approved by or pursuant to an Issuer Certificate, the Issuer will
deliver to the Indenture Trustee the Issuer Certificate by or pursuant to which
such form of Note has been approved, which Issuer Certificate will have
attached thereto a true and correct copy of the form of Note which has been
approved thereby or, if an Issuer Certificate authorizes a specific officer or
officers of the Beneficiary to approve a form of Note, a certificate of such
officer or officers approving the form of Note attached thereto. Any form of
Note approved by or pursuant to an Issuer Certificate must be acceptable as to
form to the Indenture Trustee, such acceptance to be evidenced by the Indenture
Trustee's authentication of Notes in that form or a certificate signed by an
Indenture Trustee Authorized Officer and delivered to the Issuer.
Section 2.03 Form of Indenture Trustee's Certificate of
Authentication. The form of Indenture Trustee's Certificate of Authentication
for any Note issued pursuant to this Indenture will be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Series, Class or Tranche
designated therein referred to in the within-mentioned Indenture.
XXXXX FARGO BANK,
NATIONAL ASSOCIATION,
as Indenture Trustee,
By: _________________________________
Authorized Signatory
Dated: _______________________________
Section 2.04 Notes Issuable in the Form of a Global Note.
(a) If the Issuer establishes pursuant to Sections
2.02 and 3.01 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 Indenture Trustee or its agent will, in accordance
with Section 3.03 and the Issuer Certificate delivered to the Indenture Trustee
or its agent thereunder, authenticate and deliver, such Global Note or Notes,
which, unless otherwise provided in the applicable Indenture Supplement (i)
will represent, and will be denominated in an amount equal to the aggregate
Stated Principal Amount (or in the case of Discount Notes, the aggregate Stated
Principal Amount at the Scheduled Principal Payment Date of such Notes) of the
Outstanding Notes of such Series, Class or Tranche to be represented by such
Global Note or Notes, or such portion thereof as the Issuer will specify in an
Issuer Certificate, (ii) in the case of Registered Notes, will be registered in
the name of the Depository for such Global Note or Notes or its nominee, (iii)
will be delivered by the Indenture Trustee or its agent to the Depository or
pursuant to the Depository's instruction, (iv) if applicable, will bear a
legend substantially to the following effect: "Unless this Note is presented by
an authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Issuer or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), any transfer, pledge or
other use hereof for value or otherwise by or to any person is wrongful
inasmuch as the registered owner hereof, Cede & Co., has an interest herein"
and (v) may bear such other legend as the Issuer, upon advice of counsel, deems
to be applicable.
(b) Notwithstanding any other provisions of this
Section 2.04 or of Section 3.05, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Note or the applicable Indenture Supplement
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 3.05, only to a nominee of the Depository
for such Global Note, or to the Depository, or a successor Depository for such
Global Note selected or approved by the Issuer, or to a nominee of such
successor Depository.
(c) With respect to Notes issued within the United
States, unless otherwise specified in the applicable Indenture Supplement, or
with respect to Notes issued outside the United States, if specified in the
applicable Indenture Supplement:
(i) If at any time the Depository for a
Global Note notifies the Issuer that it is unwilling or unable to
continue as Depository for such Global Note or if at any time the
Depository for the Notes for such Series, Class or Tranche ceases to
be a clearing agency registered under the Securities Exchange Act, or
other applicable statute or regulation, the Issuer will appoint a
successor Depository with respect to such Global Note. If a successor
Depository for such Global Note is not appointed by the Issuer within
90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer will execute, and the Indenture Trustee or
its agent, upon receipt of an Issuer Certificate requesting the
authentication and delivery of individual Notes of such Series, Class
or Tranche in exchange for such Global Note, will authenticate and
deliver, individual Notes of such Series, Class or Tranche of like
tenor and terms in an aggregate Stated Principal Amount equal to the
Stated Principal Amount of the Global Note in exchange for such Global
Note.
(ii) The Issuer may at any time and in its
sole discretion determine that the Notes of any Series, Class or
Tranche or portion thereof issued or issuable in the form of one or
more Global Notes will no longer be represented by such Global Note or
Notes. In such event the Issuer will execute, and the Indenture
Trustee, upon receipt of a written request by the Issuer 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
Stated Principal 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 2.02 and 3.01 with respect to Notes issued or issuable in
the form of a Global Note, the Depository for such Global Note may
surrender such Global Note in exchange in whole or in part for
individual Notes of such Series, Class or Tranche of like tenor and
terms in definitive form on such terms as are acceptable to the Issuer
and such Depository. Thereupon the Issuer will execute, and the
Indenture Trustee or its agent will authenticate and deliver, without
service charge, (A) to each Person specified by such Depository a new
Note or Notes of the same Series, Class or Tranche of like tenor and
terms and of any authorized denomination as requested by such Person
in aggregate Stated Principal Amount equal to and in exchange for such
Person's beneficial interest in the Global Note; and (B) to such
Depository a new Global Note of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the
Stated Principal Amount of the surrendered Global Note and the
aggregate Stated Principal Amount of Notes delivered to the Holders
thereof.
(iv) If any Event of Default has occurred
with respect to such Global Notes, and Holders of Notes evidencing
more than 50% of the unpaid Outstanding Dollar Principal Amount of the
Global Notes of that Series, Class or Tranche advise the Indenture
Trustee and the Depository that a Global Note is no longer in the best
interest of the Noteholders, the Holders of Global Notes may exchange
such Notes for individual Notes.
(v) In any exchange provided for in any of
the preceding three paragraphs, the Issuer will execute and the
Indenture 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 Indenture Trustee or its agent. Except as provided in
the preceding paragraphs, Notes issued in exchange for a Global Note
pursuant to this Section 2.04 will be registered in such names and in
such authorized denominations as the Depository for such Global Note,
pursuant to instructions from its direct or indirect participants or
otherwise, will instruct the Indenture Trustee or the Note Registrar.
The Indenture Trustee or the Note Registrar will deliver such Notes to
the Persons in whose names such Notes are so registered.
Section 2.05 Temporary Global Notes and Permanent Global
Notes.
(a) If specified in the applicable Indenture
Supplement for any Tranche, all or any portion of a Global Note may initially
be issued in the form of a single temporary global Bearer Note or Registered
Note (the "Temporary Global Note"), without interest coupons, in the
denomination of the entire aggregate principal amount of such Series, Class or
Tranche and substantially in the form set forth in the exhibit with respect
thereto attached to the applicable Indenture Supplement. The Temporary Global
Note will be authenticated by the Indenture Trustee upon the same conditions,
in substantially the same manner and with the same effect as the Notes in
definitive form. The Temporary Global Note may be exchanged as described below
or in the applicable Indenture Supplement for permanent global Bearer Notes or
Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable
Indenture Supplement, exchanges of beneficial interests in Temporary Global
Notes for beneficial interests in Permanent Global Notes will be made as
provided in this subsection 2.05(b). The Beneficiary will, upon its
determination of the date of completion of the distribution of the Notes of
such Series, Class or Tranche, so advise the Indenture Trustee, the Issuer, the
Foreign Depository, and each foreign clearing agency forthwith. Without
unnecessary delay, but in any event not prior to the Exchange Date, the Issuer
will execute and deliver to the Indenture Trustee at the office or its
designated agent outside the United States Permanent Global Notes in bearer or
registered form (as specified in the applicable Indenture Supplement) in an
aggregate principal amount equal to the Outstanding Dollar Principal Amount of
such Series, Class or Tranche of Notes. Bearer Notes so issued and delivered
may have coupons attached. The Temporary Global Note may be exchanged for an
equal aggregate principal amount of Permanent Global Notes only on or after the
Exchange Date. A United States Person may exchange the portion of the Temporary
Global Note beneficially owned by it only for an equal aggregate principal
amount of Permanent Global Notes in registered form bearing the applicable
legend set forth in the form of Registered Note attached to the applicable
Indenture Supplement, which may be in temporary form if the Issuer so elects.
Upon any demand for exchange for Permanent Global Notes in accordance with this
clause, the Issuer will cause the Indenture Trustee to authenticate and deliver
the Permanent Global Notes to the Holder (x) outside the United States, in the
case of Bearer Notes and (y) according to the instructions of the Holder, in
the case of Registered Notes, but in either case only upon presentation to the
Indenture Trustee of a written statement substantially in the form of Exhibit
B-1 (or such other form as the Issuer may determine) with respect to the
Temporary Global Note, or portion thereof being exchanged, signed by a foreign
clearing agency or Foreign Depository and dated on the Exchange Date or a
subsequent date, to the effect that it has received in writing or by tested
telex a certification substantially in the form of (i) in the case of
beneficial ownership of the Temporary Global Note, or a portion thereof being
exchanged, by a United States institutional investor pursuant to this clause,
the certificate in the form of Exhibit B-2 (or such other form as the Issuer
may determine) signed by the Beneficiary which sold the relevant Notes or (ii)
in all other cases, the certificate in the form of Exhibit B-3 (or such other
form as the Issuer may determine), the certificate referred to in this
subsection 2.05(b) being dated on the earlier of the first payment of interest
in respect of such Note and the date of the delivery of such Note in definitive
form. Upon receipt of such certification, the Indenture Trustee will cause the
Temporary Global Note to be endorsed in accordance with subsection 2.05(d). Any
exchange as provided in this Section 2.05 will be made free of charge to the
Holders and the beneficial owners of the Temporary Global Note and to the
beneficial owners of the Permanent Global Note issued in exchange, except that
a person receiving the Permanent Global Note must bear the cost of insurance,
postage, transportation and the like in the event that such Person does not
receive such Permanent Global Note in person at the offices of a foreign
clearing agency or Foreign Depository.
(c) The delivery to the Indenture Trustee by a
foreign clearing agency or Foreign Depository of any written statement referred
to above may be relied upon by the Issuer and the Indenture Trustee as
conclusive evidence that a corresponding certification or certifications has or
have been delivered to such foreign clearing agency pursuant to the terms of
this Indenture.
(d) Upon any such exchange of all or a portion of
the Temporary Global Note for a Permanent Global Note or Notes, such Temporary
Global Note will be endorsed by or on behalf of the Indenture Trustee to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of such Permanent Global Note or Notes. Until so
exchanged in full, such Temporary Global Note will in all respects be entitled
to the same benefits under this Indenture as Permanent Global Notes
authenticated and delivered hereunder except that the beneficial owners of such
Temporary Global Note will not be entitled to receive payments of interests on
the Notes until they have exchanged their beneficial interests in such
Temporary Global Note for Permanent Global Notes.
Section 2.06 Beneficial Ownership of Global Notes. Until
definitive Notes have been issued to the applicable Noteholders pursuant to
Section 2.04 or as otherwise specified in any applicable Indenture Supplement:
(a) the Issuer and the Indenture Trustee may deal
with the applicable clearing agency or Depository and the clearing agency's or
Depository's participants for all purposes (including the making of
distributions) as the authorized representatives of the respective Note Owners;
and
(b) the rights of the respective Note Owners will be
exercised only through the applicable clearing agency or Depository and the
clearing agency's or Depository's participants and will be limited to those
established by law and agreements between such Note Owners and the clearing
agency or Depository and/or the clearing agency's or Depository's participants.
Pursuant to the operating rules of the applicable clearing agency, unless and
until Notes in definitive form are issued pursuant to Section 2.04, the
clearing agency or the Depository will make book-entry transfers among the
clearing agency's or the Depository's participants and receive and transmit
distributions of principal and interest on the related Notes to such clearing
agency's or Depository's participants.
For purposes of any provision of this Indenture requiring or
permitting Actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the Outstanding Dollar Principal Amount of
Outstanding Notes, such direction or consent may be given by Note Owners
(acting through the clearing agency and the clearing agency's participants)
owning interests in Notes evidencing the requisite percentage of principal
amount of Notes.
Section 2.07 Notices to Depository. Whenever any notice or
other communication is required to be given to Noteholders with respect to
which book-entry Notes have been issued, unless and until Notes in definitive
form will have been issued to the related Note Owners, the Indenture Trustee
will give all such notices and communications to the applicable clearing agency
or Depository.
[END OF ARTICLE II]
ARTICLE III
THE NOTES
Section 3.01 General Title; General Limitations; Issuable in
Series; Terms of a Series, Class or Tranche of Notes.
(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 Scheduled Principal Payment Date or Legal
Maturity Date of the Notes of such Series, Class or Tranche, except as
specified in the applicable Indenture Supplement for such Series, Class or
Tranche of Notes.
(c) Each Note issued must be part of a Series, Class
and Tranche of Notes for purposes of allocations pursuant to the related Asset
Pool Supplement and the related Indenture Supplement. A Series of Notes is
created pursuant to an Indenture Supplement. A Class or Tranche of Notes is
created pursuant to an Indenture Supplement or pursuant to a Terms Document
related to the Indenture Supplement for the applicable Series.
(d) Each Series of Notes will be secured by a
particular Asset Pool. The related Indenture Supplement will identify the Asset
Pool under which a Series of Notes has been issued.
(e) Each Series of Notes may be assigned to a Group
or Groups (now existing or hereafter created) of Notes for purposes of
allocations of certain collections pursuant to Section 3.12, the related Asset
Pool Supplement and the related Indenture Supplement. The related Indenture
Supplement will identify the Group or Groups, if any, to which a Series of
Notes has been assigned and the manner and extent to which Series in the same
Group or Groups will share certain amounts.
(f) Each Series of Notes may, but need not be,
subdivided into multiple Classes. Notes belonging to a Class in any Series may
be entitled to specified payment priorities over other Classes of Notes in that
Series.
(g) Notes of a Series that belong to different
Classes in that Series belong to different Tranches on the basis of the
difference in Class membership.
(h) 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 of Notes.
(i) Before the initial issuance of Notes of each
Series, Class or Tranche, there shall also be established in or pursuant to an
Indenture Supplement or pursuant to a Terms Document related to the applicable
Indenture Supplement, provision for:
(i) the Series designation;
(ii) the Asset Pool designation;
(iii) the Stated Principal Amount of the
Notes;
(iv) whether such Series belongs to any
Group or Groups;
(v) whether such Notes are of a particular
Class of Notes or a Tranche of a Class of Notes;
(vi) the Required Subordinated Amount (if
any) for such Class or Tranche of Notes;
(vii) the currency or currencies in which
such Notes will be denominated and in which payments of principal of,
and interest on, such Notes will or may be payable;
(viii) if the principal of or interest, if
any, on such Notes 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;
(ix) if the amount of payments of principal
of or interest, if any, on such Notes may be determined with reference
to an index based on (A) a currency or currencies other than that in
which the Notes are stated to be payable, (B) changes in the prices of
one or more other securities or Groups or indexes of securities or (C)
changes in the prices of one or more commodities or Groups or indexes
of commodities, or any combination of the foregoing, the manner in
which such amounts will be determined;
(x) the price or prices at which such
Series, Class or Tranche of Notes will be issued;
(xi) the times at which such Series, Class
or Tranche of Notes may, pursuant to any optional or mandatory
redemption provisions, be redeemed, and the other terms and provisions
of any such redemption provisions;
(xii) the rate per annum at which such
Series, Class or Tranche of 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;
(xiii) each Interest Payment Date, the
Scheduled Principal Payment Date and the Legal Maturity Date for such
Series, Class or Tranche of Notes;
(xiv) the Initial Dollar Principal Amount
of such Notes, and the means for calculating the Outstanding Dollar
Principal Amount of such Series, Class or Tranche of Notes;
(xv) the Nominal Liquidation Amount of such
Series, Class or Tranche of Notes, and the means for calculating the
Nominal Liquidation Amount of such Series, Class or Tranche of Notes;
(xvi) whether or not application will be
made to list such Series, Class or Tranche of Notes on any securities
exchange;
(xvii) any Events of Default or Early
Amortization Events with respect to such Series, Class or Tranche of
Notes, if not set forth herein and any additions, deletions or other
changes to the Events of Default or Early Amortization Events set
forth herein that will be applicable to such Series, Class or Tranche
of Notes (including a provision making any Event of Default or Early
Amortization Event set forth herein inapplicable to the Notes of that
Series, Class or Tranche);
(xviii) the appointment by the Indenture
Trustee of an Authenticating Agent in one or more places with power to
act on behalf of the Indenture Trustee and subject to its direction in
the authentication and delivery of such Notes in connection with such
transactions as will be specified in the provisions of this Indenture
or in or pursuant to the applicable Indenture Supplement creating such
Series, Class or Tranche;
(xix) if such Notes will be issued in whole
or in part in the form of a Global Note or Global Notes, the terms and
conditions, if any, upon which such Global Note or Global Notes may be
exchanged in whole or in part for other individual Notes; and the
Depository for such Global Note or Global Notes (if other than the
Depository specified in Section 1.01);
(xx) if such Notes will be issued in whole
or in part as Registered Notes, Bearer Notes or both, whether such
Notes are to be issued with or without coupons or both;
(xxi) the subordination of such Notes to
any other indebtedness of the Issuer, including the Notes of any other
Series, Class or Tranche;
(xxii) if such Notes are to have the
benefit of any Derivative Agreement, the terms and provisions of such
agreement;
(xxiii) if such Notes are to have the
benefit of any Supplemental Credit Enhancement Agreement or
Supplemental Liquidity Agreement, the terms and provisions of the
applicable agreement;
(xxiv) the Record Date for any Payment Date
of such Notes, if different from the last day of the month before the
related Payment Date;
(xxv) the Target Principal Deposit Amount
scheduled to be deposited on each Principal Payment Date during an
amortization period or accumulation period for such Series, Class or
Tranche of Notes;
(xxvi) whether and under what conditions,
additional amounts will be payable to Noteholders; and
(xxvii) any other terms of such Notes as
stated in the related Indenture Supplement;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such Series, Class or Tranche of Notes.
(j) The form of the Notes of each Series, Class or
Tranche will be established pursuant to the provisions of this Indenture and
the related Indenture Supplement or Terms Document creating such Series, Class
or Tranche of Notes. 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 Indenture Trustee, as the Issuer may
determine.
(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 3.01 by providing in the applicable Indenture
Supplement the method by which such terms or provisions will be determined.
(l) The Transferor Interest for each Asset Pool will
be held by the Transferor. The Transferor Interest for each Asset Pool may be
transferred by the holder of such Transferor Interest in whole or in part
subject to certain limitations and conditions described in the Indenture
Supplements related to such Asset Pool. The Transferor Interest for each Asset
Pool may be held either in an uncertificated form or in the form of a
certificate representing the Transferor Interest, called a Transferor
Certificate.
Section 3.02 Denominations. The Notes of each Series, Class
or Tranche will be issuable in such denominations and currency as will be
provided in the provisions of this Indenture or in or pursuant to the
applicable Indenture Supplement. In the absence of any such provisions with
respect to the Registered Notes of any Series, Class or Tranche, the Registered
Notes of that Series, Class or Tranche will be issued in denominations of
$1,000 and multiples thereof. In the absence of any such provisions with
respect to the Bearer Notes of any Series, Class or Tranche, the Bearer Notes
of that Series, Class or Tranche will be issued in denominations of 1,000,
5,000, 50,000 and 100,000 units of the applicable currency.
Section 3.03 Execution, Authentication and Delivery and
Dating.
(a) The Notes will be executed on behalf of the
Issuer by an Issuer Authorized Officer. The signature of any officer of the
Beneficiary or the Owner Trustee on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures
of individuals who were at any time an Issuer Authorized Officer will bind the
Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices before the authentication and delivery of such Notes or did
not hold such offices at the date of issuance 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 Indenture Trustee for authentication; and the Indenture
Trustee will, upon request by an Officer's Certificate, authenticate and
deliver such Notes as in this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the
Indenture Trustee will be entitled to receive, in addition to any Officer's
Certificate and Opinion of Counsel required to be furnished to the Indenture
Trustee pursuant to Section 1.02, the Issuer Certificate and any other opinion
or certificate relating to the issuance of the Series, Class or Tranche of
Notes required to be furnished pursuant to Section 2.02 or Section 3.10.
(e) The Indenture Trustee will not be required to
authenticate such Notes if the issue thereof will adversely affect the
Indenture Trustee's own rights, duties or immunities under the Notes and this
Indenture.
(f) Unless otherwise provided in the form of Note
for any Series, Class or Tranche, all Notes will be dated the date of their
authentication.
(g) No Note will be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Note a Certificate of Authentication substantially in the form provided
for herein executed by the Indenture 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 3.04 Temporary Notes.
(a) Pending the preparation of definitive Notes of
any Series, Class or Tranche, the Issuer may execute, and, upon receipt of the
documents required by Section 3.03, together with an Officer's Certificate, the
Indenture 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 Series, Class or
Tranche are issued, the Issuer will cause definitive Notes of such Series,
Class or Tranche to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes of such Series, Class or
Tranche will be exchangeable for definitive Notes of such Series, Class or
Tranche upon surrender of the temporary Notes of such Series, Class or Tranche
at the office or agency of the Issuer in a Place of Payment, without charge to
the Holder; and upon surrender for cancellation of any one or more temporary
Notes the Issuer will execute and the Indenture Trustee will authenticate and
deliver in exchange therefor a like Stated Principal Amount of definitive Notes
of such Series, Class or Tranche of authorized denominations and of like tenor
and terms. Until so exchanged the temporary Notes of such Series, Class or
Tranche will in all respects be entitled to the same benefits under this
Indenture as definitive Notes of such Series, Class or Tranche.
Section 3.05 Registration, Transfer and Exchange.
(a) The Issuer will keep or cause to be kept a
register (herein sometimes referred to as the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer will
provide for the registration of Registered Notes, or of Registered Notes of a
particular Series, Class or Tranche, and for transfers of Registered Notes or
of Registered Notes of such Series, Class or 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
Indenture Trustee at the office or agency to be maintained by the Issuer as
provided in Section 10.02.
(b) Subject to Section 2.04, upon surrender for
transfer of any Registered Note of any Series, Class or Tranche at the office
or agency of the Issuer in a Place of Payment, if the requirements of Section
8-401(a) of the UCC are met, the Issuer will execute, and, upon receipt of such
surrendered Note, the Indenture Trustee will authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Notes of such Series, Class or Tranche of any authorized denominations, of a
like aggregate Stated Principal Amount, Scheduled Principal Payment Date and
Legal Maturity Date and of like terms.
(c) Subject to Section 2.04, at the option of the
Holder, Notes of any Series, Class or Tranche may be exchanged for other Notes
of such Series, Class or Tranche of any authorized denominations, of a like
aggregate Stated Principal Amount, Scheduled Principal Payment Date and Legal
Maturity Date and of like terms, upon surrender of the Notes to be exchanged at
such office or agency. Registered Notes, including Registered Notes received in
exchange for Bearer Notes, may not be exchanged for Bearer Notes. At the option
of the Holder of a Bearer Note, subject to applicable laws and regulations,
Bearer Notes may be exchanged for other Bearer Notes or Registered Notes (of
the same Series, Class and Tranche of Notes) of authorized denominations of
like aggregate fractional undivided interests in the Noteholders' interest,
upon surrender of the Bearer Notes to be exchanged at an office or agency of
the Note Registrar located outside the United States. Each Bearer Note
surrendered pursuant to this Section 3.05 will have attached thereto all
unmatured coupons; provided, however, that any Bearer Note, so surrendered
after the close of business on the last day of the month preceding the relevant
Payment Date need not have attached the coupon relating to such Payment Date.
Whenever any Notes are so surrendered for exchange, the Issuer will execute,
and the Indenture Trustee will authenticate and deliver (in the case of Bearer
Notes, outside the United Sates), the Notes which the Noteholders making the
exchange are entitled to receive.
(d) All Notes issued upon any transfer or exchange
of Notes will be the valid and legally binding 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 Indenture 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 3.04 or 9.06 not
involving any transfer.
(g) None of the Issuer, the Note Registrar or the
Indenture Trustee shall be required (i) to issue, register the transfer of or
exchange any Notes of any Series, Class or Tranche during a period beginning at
the opening of business 15 days before the day of selection of Notes of such
Series, Class or Tranche to be redeemed and ending at the close of business on
(A) if Notes of such Series, Class or Tranche are issuable only as Registered
Notes, the day of the mailing of the relevant notice of redemption of
Registered Notes of such Series, Class or Tranche so selected for redemption or
(B) if Notes of the Series, Class or Tranche are issuable as Bearer Notes, the
day of the first publication of the relevant notice of redemption or, if Notes
of the Series, Class or Tranche are also issuable as Registered Notes and there
is no publication, the mailing of the relevant notice of redemption or (ii) to
register the transfer or exchange of any Notes or portions thereof so selected
for redemption.
Notwithstanding anything herein to the contrary, the
exchange of Bearer Notes into Registered Notes shall be subject to applicable
laws and regulations in effect at the time of exchange; none of the Issuer, the
Indenture Trustee nor the Note Registrar shall exchange any Bearer Notes into
Registered Notes if it has received an Opinion of Counsel that as a result of
such exchanges the Issuer or any Transferor would suffer adverse consequences
under the United States federal income tax laws and regulations then in effect
and the Issuer has delivered to the Indenture Trustee an Issuer Certificate
directing the Indenture Trustee not to make such exchanges unless and until the
Indenture Trustee receives a subsequent Issuer Certificate to the contrary. The
Issuer shall deliver copies of such Issuer Certificates to the Note Registrar.
(h) None of the Issuer, the Indenture Trustee, any
agent of the Indenture 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.
(i) The Issuer initially appoints Xxxxx Fargo Bank,
National Association to act as Note Registrar for the Registered Notes on its
behalf. The Issuer may at any time and from time to time authorize any Person
to act as Note Registrar with respect to any Series, Class or Tranche of Notes
issued under this Indenture.
(j) Registration of transfer of Notes containing the
following legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE
NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND
ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF
THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE REFERRED
TO HEREIN."
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from the
registration requirements under the Securities Act other than Rule 144A under
the Securities Act or Rule 903 or Rule 904 of Regulation S under the Securities
Act, the transferor or the transferee will deliver, at its expense, to the
Issuer and the Indenture Trustee, an investment letter from the transferee,
substantially in the form of the investment letter attached hereto as Exhibit A
or such other form as the Issuer may determine, and no registration of transfer
will be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes
issued in exchange for, Notes bearing the legend referred to above will also
bear such legend unless the Issuer, the Indenture Trustee and the Note
Registrar receive an Opinion of Counsel, satisfactory to each of them, to the
effect that such legend may be removed.
Whenever a Note containing the legend referred to above is
presented to the Note Registrar for registration of transfer, the Note
Registrar will promptly seek instructions from the Issuer regarding such
transfer and will be entitled to receive an Issuer Certificate prior to
registering any such transfer. The Issuer hereby agrees to indemnify the Note
Registrar and the Indenture Trustee and to hold each of them harmless against
any loss, liability or expense incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by
them in relation to any such instructions furnished pursuant to this clause.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note (together, in the case
of Bearer Notes, with all unmatured coupons, if any, appertaining thereto) is
surrendered to the Indenture Trustee or the Note Registrar, or the Issuer, the
Note Registrar or the Indenture Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Note, and (ii) there is delivered to
the Issuer, the Note Registrar and the Indenture 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, the Note Registrar or the Indenture
Trustee that such Note has been acquired by a protected purchaser, the Issuer
will execute and upon its request the Indenture Trustee will authenticate and
deliver (in the case of Bearer Notes, outside the United States), 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, Scheduled 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 3.06, 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 Indenture
Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section
3.06 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 3.06 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 3.07 Payment of Interest; Interest Rights Preserved;
Withholding Taxes.
(a) Unless otherwise provided with respect to such
Note pursuant to Section 3.01, interest payable on any Registered Note will be
paid to the Person in whose name that Note (or one or more Predecessor Notes)
is registered at the close of business on the most recent Record Date and
interest payable on any Bearer Note will be paid to the bearer of that Note (or
the applicable coupon).
(b) Subject to clause (a), each Note delivered under
this Indenture upon transfer of or in exchange for or in lieu of any other Note
will carry the rights to interest accrued or principal accreted and unpaid, and
to accrue or accrete, which were carried by such other Note.
(c) The right of any Noteholder to receive interest
on or principal of any Note shall be subject to any applicable withholding or
deduction imposed pursuant to the Internal Revenue Code or other applicable tax
law, including foreign withholding and deduction. Any amounts properly so
withheld or deducted shall be treated as actually paid to the appropriate
Noteholder.
Section 3.08 Persons Deemed Owners. Title to any Bearer Note,
including any coupons appertaining thereto, shall pass by delivery. The Issuer,
the Indenture Trustee, the Owner Trustee, the Beneficiary and any agent of the
Issuer, the Indenture Trustee, the Owner Trustee, or the Beneficiary may treat
the Person who is proved to be the owner of such Note pursuant to subsection
1.04(c) as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Section 3.07) interest on such Note and for all
other purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Indenture Trustee, the Owner Trustee, nor any agent of the Issuer,
the Indenture Trustee, the Owner Trustee, or the Beneficiary will be affected
by notice to the contrary.
Section 3.09 Cancellation. All Notes surrendered for payment,
redemption, transfer, conversion or exchange will, if surrendered to any Person
other than the Indenture Trustee, be delivered to the Indenture Trustee and, if
not already canceled, will be promptly canceled by it. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered will be promptly canceled by the
Indenture 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 Indenture 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 3.10 New Issuances of Notes.
(a) The Issuer may issue new Notes of any Series,
Class or Tranche, so long as the following conditions precedent are satisfied:
(i) on or before the third Business Day
before a new issuance is to occur, the Issuer delivers to the
Indenture Trustee and each Note Rating Agency notice of such new
issuance;
(ii) on or prior to the date that the new
issuance is to occur, the Issuer delivers to the Indenture Trustee and
each Note Rating Agency an Issuer Certificate to the effect that:
(A) the Issuer reasonably believes
that the new issuance will not cause an Adverse Effect on any
Outstanding Notes;
(B) all instruments furnished to the
Indenture Trustee conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Indenture 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; and
(D) such other matters as the
Indenture Trustee may reasonably request;
(iii) on or before the date that the new
issuance is to occur, the Issuer will have delivered to the Indenture
Trustee and each Note Rating Agency an Opinion of Counsel, which may
be from internal counsel, that all laws and requirements with respect
to the execution and delivery by the Issuer of such Notes have been
complied with, the Issuer has the trust power and authority to issue
such Notes and such Notes have been duly authorized and delivered by
the Issuer and, assuming due authentication and delivery by the
Indenture 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 Outstanding Notes, if any, of such Series,
Class or Tranche of Notes, subject to the terms of this Indenture,
each Indenture Supplement and each Terms Document;
(iv) if any additional conditions to the
new issuance are specified in writing by a Note Rating Agency to the
Issuer, either (A) the Issuer satisfies such conditions or (B) the
Issuer obtains confirmation from the applicable Note Rating Agency
that the new issuance will not have a Ratings Effect on any
Outstanding Notes;
(v) in the case of Bearer Notes, such
Notes shall be described in section 163(f)(2)(B) of the Internal
Revenue Code and such section shall apply to such Notes;
(vi) on or before the date that the new
issuance is to occur, the Issuer will have delivered to the Indenture
Trustee an Indenture Supplement and, if applicable, the Issuer
Certificate or on or before the date that the new issuance is to
occur, the Issuer will have executed with the Indenture Trustee a
Terms Document relating to the applicable Class or Tranche of Notes;
(vii) in the case of Foreign Currency
Notes, the Issuer will have appointed one or more Paying Agents in the
appropriate countries;
(viii) the conditions specified herein or
in Section 3.11 are satisfied; and
(ix) any other conditions specified in the
applicable Indenture Supplement;
provided, however, that any one of the aforementioned conditions may be
eliminated or modified as a condition precedent to any new issuance of a
Series, Class or Tranche of Notes if the Issuer has obtained approval from each
Note Rating Agency.
(b) The Issuer and the Indenture Trustee will not be
required to provide prior notice to or 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.
(c) There are no restrictions on the timing or
amount of any additional issuance of Notes of an Outstanding Class or Tranche
of a Series of Notes, so long as the conditions described in subsection 3.10(a)
are met or waived. As of the date of any additional issuance of Notes of an
Outstanding Class or Tranche of Notes, the Stated Principal Amount, Outstanding
Dollar Principal Amount and Nominal Liquidation Amount of that Class or Tranche
will be increased to reflect the principal amount of the additional Notes. If
the additional Notes are a Class or Tranche of Notes that has the benefit of a
Derivative Agreement, the Issuer will enter into a Derivative Agreement for the
benefit of the additional Notes. In addition, if the additional Notes are a
Class or Tranche of Notes that has the benefit of any Supplemental Credit
Enhancement Agreement or any Supplemental Liquidity Agreement, the Issuer will
enter into a Supplemental Credit Enhancement Agreement or Supplemental
Liquidity Agreement, as applicable, for the benefit of the additional Notes.
Furthermore, the targeted deposits, if any, to the Interest Funding Account,
the Principal Funding Account, and if applicable, the Class C Reserve Account,
will be increased proportionately to reflect the principal amount of the
additional Notes.
When issued, the additional Notes of a Class or Tranche will
be identical in all respects to the other Outstanding Notes of that Class or
Tranche and will be equally and ratably entitled to the benefits of the
Indenture and the related Indenture Supplement applicable to such Notes as the
other Outstanding Notes of that Class or Tranche without preference, priority
or distinction.
Section 3.11 Specification of Required Subordinated Amount
and other Terms with Respect to each Series, Class or Tranche of Notes.
(a) The applicable Indenture Supplement for each
Class or Tranche of Notes will specify a Required Subordinated Amount of each
subordinated Class or Tranche of Notes, if any.
(b) The Issuer may change the Required Subordinated
Amount, or method of computing such amount, for any Class or Tranche of Notes
at any time without the consent of any Noteholders so long as the Issuer has
(i) received confirmation from the Note Rating Agencies that have rated any
Outstanding Notes of the Series to which such Class or Tranche belongs that the
change in the Required Subordinated Amount will not result in a Ratings Effect
with respect to any Outstanding Notes of such Series and (ii) delivered to the
Indenture Trustee and the Note Rating Agencies an Issuer Tax Opinion.
Section 3.12 Shared Excess Available Finance Charge
Collection Groups and Other Groups
The Issuer shall reallocate and redistribute certain excess
Finance Charge Collections allocated to any Series to cover Series Available
Finance Charge Collections Shortfalls incurred by Series belonging to any
particular Shared Excess Available Finance Charge Collections Group to the
extent and as specified in the related Indenture Supplements. The Issuer may
also establish other Groups for purposes of reallocating other amounts
initially allocated to designated Series to the extent and as specified in the
related Indenture Supplements.
Section 3.13 Unapplied Excess Finance Charge Collections. On
each Note Transfer Date, Unapplied Excess Finance Charge Collections for each
Shared Excess Available Finance Charge Collections Group for such Note Transfer
Date shall be applied in the following manner:
(a) if the Unapplied Excess Finance Charge
Collections for such Group for such Note Transfer Date and the sum of the
Aggregate Remaining Master Trust Level Required Amounts for all Unapplied
Excess Finance Charge Sharing Collateral Certificates with respect to such
Group for such Note Transfer Date are both greater than zero:
(i) if the amount of Unapplied Excess
Finance Charge Collections for such Group for such Note Transfer Date
is greater than or equal to the sum of the Aggregate Remaining Master
Trust Level Required Amounts for all Unapplied Excess Finance Charge
Sharing Collateral Certificates with respect to such Group for such
Note Transfer Date, the issuer of each Unapplied Excess Finance Charge
Sharing Collateral Certificate with respect to such Group shall be
paid an amount equal to the Aggregate Remaining Master Trust Level
Required Amount for such Unapplied Excess Finance Charge Sharing
Collateral Certificate, or
(ii) if the amount of Unapplied Excess
Finance Charge Collections for such Group is less than the sum of the
Aggregate Remaining Master Trust Level Required Amounts for all
Unapplied Excess Finance Charge Sharing Collateral Certificates with
respect to such Group for such Note Transfer Date, the issuer of each
Unapplied Excess Finance Charge Sharing Collateral Certificate with
respect to such Group shall be paid an amount equal to the product of
(x) the Unapplied Excess Finance Charge Collections for such Group for
such Note Transfer Date and (y) a fraction, the numerator of which is
the Aggregate Remaining Master Trust Level Required Amount for such
Unapplied Excess Finance Charge Sharing Collateral Certificate for
such Note Transfer Date and the denominator of which is the sum of the
Aggregate Remaining Master Trust Level Required Amounts for all
Unapplied Excess Finance Charge Sharing Collateral Certificates with
respect to such Group for such Note Transfer Date;
(b) Unapplied Excess Finance Charge Collections
remaining with respect to such Group after any payments made pursuant to
Section 3.13(a) shall be paid to the Transferor.
Section 3.14 Unapplied Master Trust Level Excess Finance
Charge Collections. On each Note Transfer Date, the Servicer shall calculate
the Remaining Series Finance Charge Shortfall for each Series related to each
Shared Excess Available Finance Charge Collections Group. If any such Remaining
Series Finance Charge Shortfall is greater than zero, the Servicer shall
calculate the Collateral Certificate Finance Charge Shortfall Allocation for
each Unapplied Master Trust Level Excess Finance Charge Sharing Collateral
Certificate and shall notify the servicer for the issuer of each such
Collateral Certificate of such amount. Unapplied Master Trust Level Excess
Finance Charge Collections received on any Note Transfer Date from any
Unapplied Master Trust Level Excess Finance Charge Sharing Collateral
Certificate relating to any Shared Excess Available Finance Charge Collections
Group shall be applied in the following manner:
(a) if the aggregate amount of Unapplied Master
Trust Level Excess Finance Charge Collections received on such Note Transfer
Date with respect to such Group is greater than or equal to the sum of the
Remaining Series Finance Charge Shortfalls for all Series in such Group, each
such Series shall receive the amount of its Remaining Series Finance Charge
Shortfall for such Note Transfer Date; and
(b) if the aggregate amount of Unapplied Master
Trust Level Excess Finance Charge Collections received on such Note Transfer
Date with respect to such Group is less than the sum of the Remaining Series
Finance Charge Shortfalls for all Series in such Group, each such Series shall
receive an amount equal to the product of (i) the aggregate amount of Unapplied
Master Trust Level Excess Finance Charge Collections received on such Note
Transfer Date with respect to such Group and (ii) a fraction, the numerator of
which is the Remaining Series Finance Charge Shortfall for such Series and the
denominator is equal to the sum of the Remaining Series Finance Charge
Shortfalls for all Series in such Group.
Section 3.15 Unapplied Master Trust Level Principal
Collections. On each Note Transfer Date, the Servicer shall calculate the
Remaining Series Principal Shortfall for each Series of Notes for such Note
Transfer Date. If the sum of the Remaining Series Principal Shortfalls for all
Series secured by any Asset Pool for such Note Transfer Date is greater than
zero, the Servicer shall calculate the Collateral Certificate Principal
Shortfall Allocation for each Unapplied Master Trust Level Principal Sharing
Collateral Certificate in such Asset Pool for such Note Transfer Date and shall
notify the servicer for the issuer of each such Collateral Certificate of such
amount. Unapplied Master Trust Level Principal Collections received on any Note
Transfer Date with respect to each Unapplied Master Trust Level Principal
Sharing Collateral Certificate in an Asset Pool shall be applied in the
following manner:
(a) if the aggregate amount of Unapplied Master
Trust Level Principal Collections received on such Note Transfer Date with
respect to such Asset Pool is greater than or equal to the sum of the Remaining
Series Principal Shortfalls for all Series secured by such Asset Pool for such
Note Transfer Date, each such Series shall receive the amount of its Remaining
Series Principal Shortfall for such Note Transfer Date; and
(b) if the aggregate amount of Unapplied Master
Trust Level Principal Collections received on such Note Transfer Date with
respect to such Asset Pool is less than the sum of the Remaining Series
Principal Shortfalls for all Series secured by such Asset Pool for such Note
Transfer Date, each such Series shall receive an amount equal to the product of
(i) the aggregate amount of Unapplied Master Trust Level Principal Collections
received on such Note Transfer Date with respect to such Asset Pool and (ii) a
fraction, the numerator of which is the Remaining Series Principal Shortfall
for such Series for such Note Transfer Date and the denominator is equal to the
sum of the Remaining Series Principal Shortfalls for all Series secured by such
Asset Pool for such Note Transfer Date.
[END OF ARTICLE III]
ARTICLE IV
BANK ACCOUNTS AND INVESTMENTS
Section 4.01 Collections. Except as otherwise expressly
provided in this Indenture, the Indenture Trustee may demand payment or
delivery of, and shall 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 Indenture Trustee pursuant to this
Indenture including all funds and other property payable to the Indenture
Trustee in connection with the Collateral designated for inclusion in each
Asset Pool. The Indenture Trustee will hold all such money and property
received by it as part of the Collateral designated for inclusion in an Asset
Pool and will apply it as provided in this Indenture.
Section 4.02 Bank Accounts.
(a) On or before the date of initial issuance of
Notes secured by the Collateral designated for inclusion in a specific Asset
Pool, the Issuer will, pursuant to the related Asset Pool Supplement, cause to
be established and maintained for such Asset Pool one or more Qualified Bank
Accounts (each such account as described in the related Asset Pool Supplement)
in the name of the related Collateral Agent, bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
related Collateral Agent and the applicable Noteholders. From time to time in
connection with the issuance of a Series, Class or Tranche of Notes, the
Indenture Trustee may cause the related Collateral Agent to establish one or
more Qualified Bank Accounts denominated as "Supplemental Bank Accounts" in the
name of the related Collateral Agent. Each Bank Account shall be under the
control (within the meaning of Section 9-104 of the UCC) of the Collateral
Agent for the applicable Asset Pool for the benefit of the Indenture Trustee,
the applicable Collateral Agent and the applicable Noteholders whose Notes are
secured by the Collateral designated for inclusion in the applicable Asset
Pool. Supplemental Bank Accounts shall be created as specified in the
applicable Asset Pool Supplement or Indenture Supplement. Any Supplemental Bank
Account will receive deposits as specified in the applicable Asset Pool
Supplement or Indenture Supplement. If, at any time, the institution holding
any Bank Account ceases to be a Qualified Institution, the Issuer shall within
10 Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Note Rating Agency may consent in writing) establish a new Bank
Account that is a Qualified Bank Account and shall transfer any cash and/or
investments from the existing Bank Account to such new Bank Account.
(b) All payments to be made from time to time by or
on behalf of the Indenture Trustee to Noteholders out of funds in the Bank
Accounts for a particular Asset Pool pursuant to this Indenture will be made as
provided in the applicable Asset Pool Supplement or the applicable Indenture
Supplement but only to the extent of available funds in the applicable
Supplemental Bank Account.
Section 4.03 Investment of Funds in the Bank Accounts.
(a) Funds on deposit in the Bank Accounts will
(unless otherwise stated in the applicable Indenture Supplement) be invested
and reinvested by the related Collateral Agent or its designee acting on behalf
of the Indenture Trustee at the written direction of the Issuer in one or more
Permitted Investments. Absent such written direction, the Collateral Agent
shall invest the funds in the Permitted Investments described in clause (a)(v)
of the definition thereof. The Issuer may authorize the Indenture Trustee to
direct the Collateral Agent to make specific investments pursuant to written
instructions, in such amounts as the Issuer will specify. Notwithstanding the
foregoing, funds held by the Indenture Trustee in any of the Bank Accounts will
be invested in Permitted Investments that will mature in each case no later
than the date on which such funds in the Bank Accounts are scheduled to be
transferred or distributed by the Indenture Trustee pursuant to this Indenture
(or as necessary to provide for timely payment of principal or interest on the
applicable Principal Payment Date or Interest Payment Date).
(b) All funds deposited from time to time in the
Bank Accounts pursuant to this Indenture and all investments made with such
funds will be held by the related Collateral Agent in the Bank Accounts as part
of the Collateral designated for inclusion in such Asset Pool as herein
provided, subject to withdrawal by the Indenture Trustee or the applicable
Collateral Agent, as applicable, for the purposes specified herein.
(c) Funds and other property in any of the Bank
Accounts will not be commingled with any other funds or property of the Issuer,
the Indenture Trustee or the related Collateral Agent. The Indenture Trustee
shall cause the related Collateral Agent to hold all Permitted Investments in a
manner specified in the related Asset Pool Supplement such as to insure that
such Collateral Agent shall have a first priority perfected security interest
therein; provided, that, other than following an Event of Default and
acceleration pursuant to Section 6.02, no Permitted Investment shall be
disposed of prior to its maturity.
(d) On the applicable Note Transfer Date, all
interest and earnings (net of losses and investment expenses) on funds on
deposit in the Bank Accounts will be applied as specified in the applicable
Asset Pool Supplement or Indenture Supplement. Unless otherwise stated in the
related Asset Pool Supplement or Indenture Supplement, for purposes of
determining the availability of funds or the balance in the Bank Accounts for
any reason under this Indenture or any Indenture Supplement, investment
earnings on such funds shall be deemed not to be available or on deposit.
Subject to subsection 7.01(c), the Indenture Trustee
will not in any way be held liable by reason of any insufficiency in such Bank
Accounts resulting from any loss on any Permitted Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Permitted Investments issued by the Indenture Trustee, in its
commercial capacity, in accordance with their terms.
(e) Funds on deposit in the Bank Accounts will be
invested and reinvested by the Indenture Trustee or, with respect to Bank
Accounts relating to any Asset Pool, if so required by the Asset Pool
Supplement relating to such Asset Pool, by the applicable Collateral Agent, to
the fullest extent practicable, in such manner as the Indenture Trustee or such
Collateral Agent will from time to time determine, but only in Permitted
Investments described in clause (a)(v) of the definition thereof, upon the
occurrence of any of the following events:
(i) the Issuer will have failed to give
investment directions to the Indenture Trustee or such Collateral
Agent; or
(ii) an Event of Default will have occurred
and is continuing but no Notes have been declared due and payable
pursuant to Section 6.02.
[END OF ARTICLE IV]
ARTICLE V
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES
HELD BY THE ISSUER OR CHASE USA
Section 5.01 Satisfaction and Discharge of Indenture. This
Indenture will cease to be of further effect with respect to all Series, Class
or Tranche of Notes (except as to any surviving rights of transfer or exchange
of Notes of any Series, Class or Tranche expressly provided for herein or in
the form of Note for that Series, Class or Tranche), and the Indenture Trustee,
on demand of and at the expense of the Issuer, will execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to all
Notes when:
(a) all Notes theretofore authenticated and
delivered (other than (i) Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.06, and (ii) Notes
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from that trust, as provided in Section 10.03) have been delivered
to the Indenture Trustee canceled or for cancellation;
(b) the Issuer has paid or caused to be paid all
other sums payable under the Indenture (including payments to the Indenture
Trustee pursuant to Section 7.07 and to the Collateral Agent pursuant to the
Asset Pool Supplement) by the Issuer with respect to the Notes; and
(c) the Issuer has delivered to the Indenture
Trustee an Officer'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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Indenture Trustee with respect to any Series,
Class or Tranche of Notes under Section 7.07 and the obligations of the
Indenture Trustee under Sections 5.02 and 10.03 will survive such satisfaction
and discharge.
Section 5.02 Application of Trust Money. All money and
obligations deposited with the Indenture Trustee pursuant to Section 5.01 or
Section 5.03 and all money received by the Indenture 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
Indenture Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment that money and obligations have been
deposited with or received by the Indenture Trustee; but that money and
obligations need not be segregated from other funds held by the Indenture
Trustee except to the extent required by law.
Section 5.03 Cancellation of Notes Held by the Issuer or the
Transferor. If the Issuer, the Transferor or any of their Affiliates holds any
Notes, that Holder may, subject to any provisions of a related Indenture
Supplement limiting the repayment of such Notes, by notice from that Holder to
the Indenture Trustee cause the Notes to be canceled, whereupon the Notes will
no longer be Outstanding.
[END OF ARTICLE V]
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.01 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 expressly stated to be inapplicable to a particular Series, Class or
Tranche of Notes or specifically deleted or modified in the applicable
Indenture Supplement creating such Series, Class or Tranche of Notes or in the
form of Note for such Series, Class or Tranche:
(a) with respect to such Series, Class or Tranche of
Notes, as applicable, a default by the Issuer in the payment of any interest on
such Notes when such interest becomes due and payable, and continuance of such
default for a period of 35 days following the date on which such interest
became due and payable;
(b) with respect to such Series, Class or Tranche of
Notes, as applicable, a default by the Issuer in the payment of the Stated
Principal Amount of such Tranche of Notes at the applicable Legal Maturity
Date;
(c) a default in the performance, or breach, of any
covenant or warranty of the Issuer in this Indenture in respect of the Notes of
such Series, Class or Tranche (other than a covenant or warranty in respect of
the Notes of such Series, Class or Tranche a default in the performance of
which or the breach of which is elsewhere in this Section specifically dealt
with), all of such covenants and warranties in this Indenture which are not
expressly stated to be for the benefit of a particular Series, Class and
Tranche of Notes being deemed to be in respect of the Notes of all Series,
Classes or Tranches for this purpose, and continuance of such default or breach
for a period of 90 days after there has been given, by registered or certified
mail, to the Issuer and the Collateral Agent by the Indenture Trustee, to the
Issuer and the Indenture Trustee by the Collateral Agent or to the Issuer, the
Collateral Agent and the Indenture Trustee by the Holders of at least 25% of
the aggregate Outstanding Dollar Principal Amount of the Outstanding Notes of
the affected Series, Class or Tranche, a written notice specifying such default
or breach and requesting it to be remedied and stating that such notice is a
"Notice of Default" hereunder and, as a result of such default, the interests
of the Holders of the Notes of such Series, Class or Tranche are materially and
adversely affected and continue to be materially and adversely affected during
the 90 day period;
(d) the entry of an order for relief against the
Issuer under the Federal Bankruptcy Code by a court having jurisdiction in the
premises or a decree or order by a court having jurisdiction in the premises
adjudging the Issuer as 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 90 consecutive days;
(e) the consent by the Issuer to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable federal or state law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Issuer in furtherance of any such
action; or
(f) with respect to such Series, Class or Tranche,
any additional Event of Default specified in the Indenture Supplement for such
Series, Class or Tranche of Notes as applying to such Series, Class or Tranche
of Notes, or specified in the form of Note for such Series, Class or Tranche.
Section 6.02 Acceleration of Maturity; Rescission and
Annulment.
(a) If an Event of Default described in clause (a),
(b), (c) or (f) (if the Event of Default under clause (c) or (f) is with
respect to less than all Series, Classes and Tranches of Notes then
Outstanding) of Section 6.01 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 shall have already
become due and payable, either the Indenture Trustee or the Holders of more
than 66 2/3% of the 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 Indenture Trustee if given by the Holders and in all cases with a copy of
such notice to the applicable Collateral Agent), may declare the Outstanding
Dollar Principal Amount of all the Outstanding Notes of such Series, Class or
Tranche and all interest accrued or principal accreted and unpaid (if any)
thereon to be due and payable immediately, and upon any such declaration the
same will become and will be immediately due and payable, anything in this
Indenture, the related Indenture Supplement or in the Notes of such Series,
Class or Tranche to the contrary notwithstanding. Such payments are subject to
the allocation provisions of the applicable Asset Pool Supplement and the
allocation, deposits and payment sections of the related Indenture Supplement.
(b) If an Event of Default described in clause (c)
or (f) of Section 6.01 occurs with respect to all Series, Classes and Tranches
of Outstanding Notes and is continuing, then and in each and every such case,
unless the principal of all the Notes shall have already become due and
payable, either the Indenture Trustee or the Holders of more than 66 2/3% of
the Outstanding Dollar Principal Amount of all the Outstanding Notes hereunder
(treated as one Class), by notice in writing to the Issuer (and to the
Indenture Trustee if given by Holders ) and in all cases with a copy of such
notice to the applicable Collateral Agent for each Asset Pool with affected
Notes, may declare the Outstanding Dollar Principal Amount of all the Notes
then Outstanding and all interest accrued or principal accreted and unpaid (if
any) thereon to be due and payable immediately, and upon any such declaration
the same will become and will be immediately due and payable, notwithstanding
anything in this Indenture, the related Indenture Supplements or the Notes to
the contrary.
(c) If an Event of Default described in clause (d)
or (e) of Section 6.01 occurs and is continuing, then the Notes of all Series,
Classes and Tranches 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 or an automatic acceleration has occurred 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 Collateral Agent and/or the
Indenture Trustee as hereinafter in this Article VI provided, the Holders of
more than 66 2/3% of the Outstanding Dollar Principal Amount of such Series,
Classes or Tranches, by written notice to the Issuer, the Indenture Trustee and
the Collateral Agent, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with
the Indenture Trustee a sum sufficient to pay (A) all overdue
installments of interest on the Notes of such Series, Class or
Tranche, (B) the principal of any Notes of such Series, Class or
Tranche which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Notes of such Series, Class or Tranche,
to the extent that payment of such interest is lawful, (C) interest
upon overdue installments of interest at the rate or rates prescribed
therefor by the terms of the Notes of such Series, Class or Tranche to
the extent that payment of such interest is lawful, and (D) all sums
paid by the Indenture Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Indenture Trustee, its
agents and counsel and all other amounts due to the Indenture Trustee
under Section 7.07 and the Collateral Agent pursuant to the applicable
Asset Pool Supplement; and
(ii) all Events of Default with respect to
such Series, Class or Tranche of Notes, other than the nonpayment of
the principal of the Notes of such Series, Class or Tranche which has
become due solely by such acceleration, have been cured or waived as
provided in Section 6.16.
No such rescission will affect any subsequent default or
impair any right consequent thereon.
Section 6.03 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee or the Collateral Agent on Behalf of the
Indenture Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest
on any Series, Class or Tranche of Notes when such interest becomes due and
payable and such default continues for a period of 35 days following the date
on which such interest became due and payable, or
(b) the Issuer defaults in the payment of the
principal of any Series, Class or Tranche of Notes on the Legal Maturity Date
thereof;
the Issuer will, upon demand of the Indenture Trustee or the Collateral Agent,
acting on behalf of the Indenture Trustee, pay (subject to the allocation
provided in this Article VI and any related Indenture Supplement) to the
Collateral Agent, on behalf of the Indenture Trustee, for the benefit of the
Holders of any such Notes of the affected Series, Class or Tranche, the whole
amount then due and payable on any such Notes for principal and interest, with
interest, to the extent that payment of such interest will be legally
enforceable, upon the overdue principal and upon overdue installments of
interest, (i) in the case of Interest-bearing Notes, at the rate of interest
applicable to the stated principal amount thereof, unless otherwise specified
in the applicable Indenture Supplement; and (ii) in the case of Discount Notes,
as specified in the applicable Indenture Supplement, and in addition thereto,
will pay such further amount as will be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of (x) the Indenture Trustee, its agents and counsel
and all other amounts due to the Indenture Trustee under Section 7.07 and (y)
the Collateral Agent, its agents and counsel and all other amounts due the
Collateral Agent pursuant to the applicable Asset Pool Supplement.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Indenture Trustee may or may instruct the Collateral Agent, in its
own name and as trustee of an express trust, to institute a judicial proceeding
for the collection of the sums so due and unpaid, and may directly or may
instruct the Collateral Agent to prosecute such proceeding to judgment or final
decree, and the Indenture Trustee or the Collateral Agent 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 6.04 Indenture Trustee or the Collateral Agent 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 Indenture 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 Collateral Agent will have made any
demand on the Issuer for the payment of overdue principal or interest) will be
entitled and empowered either directly or through instruction to the Collateral
Agent to do the same by intervention in such proceedings or otherwise:
(a) 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 Indenture Trustee or the Collateral Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances (x)
of the Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 7.07 and (y) of the Collateral Agent, its
agents and counsel and all other amounts due the Collateral Agent pursuant to
the applicable Asset Pool Supplement) and of the Noteholders allowed in such
judicial proceeding, and
(b) 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 Collateral Agent or the Indenture
Trustee, as the case may be, and in the event that the Indenture Trustee and
the Collateral Agent will consent to the making of such payments directly to
the Noteholders, to pay (x) to the Indenture Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel, and any other amounts due the
Indenture Trustee under Section 7.07 and (y) to the Collateral Agent any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Collateral Agent, its agents and counsel, and any other amounts due to
the Collateral Agent pursuant to the applicable Asset Pool Supplement.
Nothing herein contained will be deemed to authorize the
Indenture Trustee or the Collateral Agent to authorize or consent to or accept
or adopt on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Indenture Trustee or the Collateral Agent to vote
in respect of the claim of any Noteholder in any such proceeding.
Section 6.05 Indenture Trustee and the Collateral Agent 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 Indenture Trustee or the Collateral Agent, at
the direction of the Indenture 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
Indenture Trustee or the Collateral Agent, at the direction of the Indenture
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 Indenture
Trustee and the Collateral Agent and their respective agents 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 6.06 Application of Money Collected. Any money or
other property collected by the Indenture Trustee or the Collateral Agent, at
the direction of the Indenture Trustee, with respect to a Series, Class or
Tranche of Notes pursuant to this Article VI will be applied in the following
order, at the date or dates fixed by the Indenture Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Notes of such Series, Class or Tranche and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
(a) first, to the payment of all amounts due the
Indenture Trustee under Section 7.07(a) and the Collateral Agent, pari passu,
under the related Asset Pool Supplement;
(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 the relevant allocation provisions of the related
Asset Pool Supplement and the related Indenture Supplements), according to the
amounts due and payable on such Notes for principal and interest, respectively;
and
(c) third, to pay any Trust Servicing Fees and any
other fees or expenses then owing for that Series, Class or Tranche of Notes;
and
(d) fourth, to the Issuer.
Section 6.07 Collateral Agent May Elect to Hold the
Collateral Certificate. Following an acceleration of any Series, Class or
Tranche of Notes, the Collateral Agent may, at the direction of the Indenture
Trustee, elect to continue to hold a Collateral Certificate and apply
distributions on a Collateral Certificate in accordance with the regular
distribution provisions pursuant to the relevant allocation provisions of the
related Asset Pool Supplement, except that principal will be paid on the
accelerated Series, Class or Tranche of Notes to the extent funds are received
and allocated to the accelerated Series, Class or Tranche of Notes, and payment
is permitted by the subordination provisions of the accelerated Series, Class
or Tranche of Notes.
Section 6.08 Sale of Collateral for Accelerated Notes. In
the case of a Series, Class or Tranche of Notes that has been accelerated
following an Event of Default, the Collateral Agent may, at the direction of
the Indenture Trustee, and at the direction of the Holders of more than
66 2/3% of the Outstanding Dollar Principal Amount of that Series, Class or
Tranche of Notes will, cause the Issuer to sell Collateral as provided in the
related Indenture Supplement; provided, however, that none of the Transferor,
any Affiliate of the Transferor or any agent of the Transferor shall be
permitted to purchase Receivables in such case or to participate in such vote
whether as a Noteholder or otherwise.
Section 6.09 Noteholders Have the Right to Direct the Time,
Method and Place of Conducting Any Proceeding for Any Remedy Available to the
Indenture Trustee or the Collateral Agent. The Holders of more than 66 2/3% of
the Outstanding Dollar Principal Amount of any accelerated Series, Class or
Tranche of Notes have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee or
the Collateral Agent, or exercising any trust or power conferred on the
Indenture Trustee or on the Collateral Agent. This right may be exercised only
if the direction provided by the Noteholders does not conflict with applicable
law or this Indenture and does not have a substantial likelihood of involving
the Indenture Trustee or the Collateral Agent in personal liability.
Section 6.10 Limitation on Suits. To the fullest extent
permitted by applicable law, 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 Indenture Trustee, who shall have forwarded such notice to the
Collateral Agent of a continuing Event of Default with respect to Notes of such
Series, Class or Tranche;
(b) the Holders of more than 25% in Outstanding
Dollar Principal Amount of the Outstanding Notes of such Series, Class or
Tranche have made written request to the Indenture Trustee, who shall have
forwarded such request to the Collateral Agent, to institute proceedings in
respect of such Event of Default in the name of the Collateral Agent under the
related Asset Pool Supplement and on behalf of the Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the
Indenture Trustee for itself and for the benefit of the Collateral Agent,
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) both the Indenture Trustee and the Collateral
Agent, on behalf of the Indenture Trustee, for 60 days after the Indenture
Trustee has received such notice, request and offer of indemnity have failed to
institute any such proceeding; and
(e) no direction inconsistent with such written
request has been given to the Indenture Trustee, on behalf of the Collateral
Agent, during such 60 day period by the Majority Holders of such Series, Class
or Tranche;
it being understood and intended that no one or more Holders of Notes of such
Series, Class or Tranche will have any right in any manner whatsoever 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 6.11 Unconditional Right of Noteholders to Receive
Principal and Interest; Limited Recourse. Notwithstanding any other provisions
in this Indenture, the Holder of any Note will have the right, which is
absolute and unconditional, to receive payment of the principal of and interest
on such Note on the Legal Maturity Date expressed in the related Indenture
Supplement 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
Transferor, the Indenture Trustee, the Collateral Agent, the Owner Trustee or
any Affiliate, officer, employee or director of any of them, and the obligation
of the Issuer to pay principal of or interest on the Notes or any other amount
payable to any Noteholder will be subject to the allocation and payment
provisions of the applicable Asset Pool Supplements and the applicable
Indenture Supplements and limited to amounts available from the Collateral
pledged to secure the Notes of the applicable Asset Pool.
Section 6.12 Restoration of Rights and Remedies. If the
Indenture Trustee or the Collateral Agent, on behalf of the Indenture Trustee,
or any Noteholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the Issuer, the Indenture Trustee, the
Collateral Agent, on behalf of the Indenture 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 Indenture Trustee, the Collateral Agent, on behalf of the
Indenture Trustee, and the Noteholders will continue as though no such
proceeding had been instituted.
Section 6.13 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee, the
Collateral Agent, on behalf of the Indenture 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 6.14 Delay or Omission Not Waiver. No delay or
omission of the Indenture Trustee, the Collateral Agent 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 VI or by law to the Indenture Trustee, the Collateral Agent, on behalf
of the Indenture Trustee, or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee, the
Collateral Agent, on behalf of the Indenture Trustee, or by the Noteholders, as
the case may be.
Section 6.15 Control by Noteholders. Holders of more than
66 2/3% of the Outstanding Dollar Principal Amount of any affected Series,
Class or Tranche will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee
and the Collateral Agent on behalf of the Indenture Trustee, or exercising any
trust or power conferred on the Indenture Trustee with respect to the Notes of
such Series, Class or Tranche, provided that:
(a) the Indenture Trustee and the Collateral Agent,
on behalf of the Indenture Trustee, will have the right to decline to follow
any such direction if the Indenture Trustee or the Collateral Agent, as the
case may be, being advised by counsel, determines that the Action so directed
may not lawfully be taken or would conflict with this Indenture or if the
Indenture Trustee or the Collateral Agent in good faith will, by a Collateral
Agent Authorized Officer, determine that the proceedings so directed would
involve it in personal liability or be unjustly prejudicial to the Holders not
taking part in such direction, and
(b) the Indenture Trustee and the Collateral Agent,
on behalf of the Indenture Trustee, may take any other action permitted
hereunder deemed proper by the Indenture Trustee or the Collateral Agent, as
the case may be, which is not inconsistent with such direction.
Section 6.16 Waiver of Past Defaults. Holders of more than
66 2/3% of the Outstanding Dollar Principal Amount 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 or under the related Indenture
Supplement 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 IX 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 6.17 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 Indenture Trustee or the Collateral Agent for any action taken
or omitted by it as Indenture Trustee or the Collateral Agent, respectively,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, 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 Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 25% in Outstanding Dollar Principal Amount of the
Outstanding Notes of any Series, Class or Tranche to which the suit relates, or
to any suit instituted by any Noteholders for the enforcement of the payment of
the principal of or interest on any Note on or after the applicable Legal
Maturity Date expressed in such Note.
Section 6.18 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 Indenture Trustee or Collateral Agent, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
[END OF ARTICLE VI]
ARTICLE VII
THE INDENTURE TRUSTEE
Section 7.01 Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture
with respect to the Notes of any Series, Class or Tranche, and no implied
covenants or obligations will be read into this Indenture against the Indenture
Trustee.
(b) In the absence of bad faith on its part, the
Indenture Trustee may, with respect to Notes of any Series, Class or Tranche,
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Indenture 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 Indenture Trustee, the Indenture
Trustee will be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of any mathematical calculations or other facts stated
therein.
(c) In case an Event of Default with respect to any
Series, Class or Tranche of Notes has occurred and is continuing, the Indenture
Trustee will exercise with respect to the Notes of such Series, Class or
Tranche such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a fiduciary would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(d) No provision of this Indenture will be construed
to relieve the Indenture Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) this clause (d) will not be construed
to limit the effect of subsection (a) of this Section;
(ii) the Indenture Trustee will not be
liable for any error of judgment made in good faith by an Indenture
Trustee Authorized Officer, unless it will be proved that the
Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture 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 more
than 66 2/3% of the Outstanding Dollar Principal Amount of any Series,
Class or Tranche relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture with respect to the Notes of such Series, Class
or Tranche; and
(iv) no provision of this Indenture will
require the Indenture Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it will have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to the Indenture
Trustee against such risk or liability is not reasonably assured to
it.
(e) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Indenture Trustee will be subject
to the provisions of this Section.
Section 7.02 Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to Notes of any Series, Class
or Tranche:
(a) the Indenture Trustee will transmit by mail to
all Registered 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 Indenture Trustee,
(b) the Indenture Trustee will notify all Holders of
Bearer Notes of such Series, Class or Tranche, by publication of notice of such
default in an Authorized Newspaper, or as otherwise provided in the applicable
Indenture Supplement, and
(c) the Indenture Trustee will give prompt written
notification thereof to the Note Rating Agencies, unless such default will have
been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such Series, Class or Tranche, the
Indenture 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 Indenture Trustee Authorized Officers of the Indenture Trustee
in good faith determine that the withholding of such notice is in the interests
of the Noteholders of such Series, Class or Tranche. 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 7.03 Certain Rights of Indenture Trustee. Except as
otherwise provided in Section 7.01:
(a) the Indenture Trustee may conclusively 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 (whether
in its original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture
the Indenture Trustee will deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Indenture Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(c) the Indenture Trustee may consult with counsel
of its own selection and the 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;
(d) the Indenture 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 shall have offered to the Indenture
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(e) the Indenture 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
Indenture Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Indenture Trustee 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;
(f) the Indenture Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Indenture 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
(g) the Indenture Trustee will not be responsible
for filing any financing statements or continuation statements in connection
with the Notes, but will cooperate with the Issuer in connection with the
filing of such financing statements or continuation statements.
Section 7.04 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
Indenture Trustee assumes no responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Notes. The Indenture Trustee will not be accountable
for the use or application by the Issuer of Notes or the proceeds thereof.
Section 7.05 May Hold Notes. Subject to the requirements of
Rule 3a-7(a)(4)(i) under the Investment Company Act, the Indenture 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 7.08, 7.09 and 7.13, may otherwise deal with the Issuer
with the same rights it would have if it were not Indenture Trustee, Paying
Agent, Note Registrar or such other agent.
Section 7.06 Money Held in Trust. Money held by the Indenture
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Indenture Trustee will be under no liability
for interest on any money received by it hereunder except as otherwise agreed
with the Issuer.
Section 7.07 Compensation and Reimbursement, Limit on
Compensation, Reimbursement and Indemnity.
(a) The Issuer agrees:
(i) to pay to the Indenture Trustee from
time to time reasonable compensation (or, for so long as Xxxxx Fargo
Bank, National Association is the Indenture Trustee, such amount as
has been mutually agreed upon) 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 Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the reasonable
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 Indenture Trustee
for, and to hold it harmless against, any and all 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 (whether asserted by the Issuer, the Servicer,
any Holder or any other Person) in connection with the exercise or
performance of any of its powers or duties hereunder.
The Indenture Trustee will have no recourse to any asset of the Issuer other
than funds available pursuant to Section 6.06 or to any Person other than the
Servicer or the Issuer. Except as specified in Section 6.06, any such payment
to the Indenture Trustee shall be subordinate to payments to be made to
Noteholders.
(b) This Section will survive the termination of
this Indenture and the resignation or replacement of the Indenture Trustee
under Section 7.10.
Section 7.08 Disqualification; Conflicting Interests. If the
Indenture Trustee has or will acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Indenture 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 Indenture
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 7.09 Corporate Indenture Trustee Required;
Eligibility. There will at all times be an Indenture Trustee hereunder with
respect to each Series, Class or Tranche of Notes, which will be either a bank
or a corporation organized and doing business under the laws of the United
States of America or of any state, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by federal or state
authority, having a rating of at least "BBB-" by Standard & Poor's. The
Indenture Trustee shall at all times meet the requirements of Rule
3a-7(a)(4)(i) under the Investment Company Act and shall not provide credit or
credit enhancement to the Issuer. 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 Indenture Trustee. If at any time the Indenture 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 VII.
Section 7.10 Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Indenture
Trustee and no appointment of a successor Indenture Trustee pursuant to this
Article VII will become effective until the acceptance of appointment by the
successor Indenture Trustee under Section 7.11.
(b) The Indenture 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 Indenture
Trustee shall not have been delivered to the Indenture Trustee within 30 days
after the giving of such notice of resignation, the resigning Indenture Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee.
(c) The Indenture Trustee may be removed with
respect to any Series, Class or Tranche of Notes at any time by Action of the
Majority Holders of that Series, Class or Tranche, delivered to the Indenture
Trustee and to the Issuer.
(d) If at any time:
(i) the Indenture Trustee fails to comply
with Section 310(b) of the Trust Indenture Act with respect to any
Series, Class or Tranche of Notes after written request therefor by
the Issuer or by any Noteholder who has been a bona fide Holder of a
Note of that Series, Class or Tranche for at least 6 months, or
(ii) the Indenture Trustee ceases to be
eligible under Section 7.09 with respect to any Series, Class or
Tranche of Notes and fails to resign after written request therefor by
the Issuer or by any such Noteholder, or
(iii) the Indenture Trustee becomes
incapable of acting with respect to any Series, Class or Tranche of
Notes, or
(iv) the Indenture Trustee is adjudged
bankrupt or insolvent or a receiver of the Indenture Trustee or of its
property is appointed or any public officer takes charge or control of
the Indenture 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 Indenture Trustee, with
respect to the Series, Class or Tranche, or in the case of clause (iv), with
respect to all Series, Classes or Tranches, or (B) subject to Section 6.17, any
Noteholder who has been a bona fide Holder of a Note of such Series, Class and
Tranche for at least 6 months may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Indenture Trustee with respect to such Series, Class or Tranche and the
appointment of a successor Indenture Trustee with respect to the Series, Class
or Tranche, or, in the case of clause (iv), with respect to all Series, Classes
and Tranches.
(e) If the Indenture Trustee resigns, is removed or
becomes incapable of acting with respect to any Series, Class or Tranche of
Notes, or if a vacancy shall occur in the office of the Indenture Trustee with
respect to any Series, Class or Tranche of Notes for any cause, the Issuer will
promptly appoint a successor Indenture 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 Indenture Trustee
with respect to such Series, Class or Tranche of Notes is appointed by Action
of the Majority Holders of such Series, Class or Tranche delivered to the
Issuer and the retiring Indenture Trustee, the successor Indenture Trustee so
appointed will, forthwith upon its acceptance of such appointment, become the
successor Indenture Trustee with respect to such Series, Class or Tranche and
supersede the successor Indenture Trustee appointed by the Issuer with respect
to such Series, Class or Tranche of Notes. If no successor Indenture Trustee
with respect to such Series, Class or Tranche of Notes shall 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 such Series, Class or Tranche for at least
6 months may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Indenture Trustee with respect to such Series, Class or Tranche of Notes.
(f) The Issuer will give written notice of each
resignation and each removal of the Indenture Trustee with respect to any
Series, Class or Tranche of Notes and each appointment of a successor Indenture
Trustee with respect to any Series, Class or Tranche to each Noteholder as
provided in Section 1.06 and to each Note Rating Agency. To facilitate delivery
of such notice, upon request by the Issuer, the Note Registrar shall provide to
the Issuer a list of the relevant Registered Noteholders. Each notice will
include the name of the successor Indenture Trustee and the address of its
principal Corporate Trust Office.
Section 7.11 Acceptance of Appointment by Successor. Every
successor Indenture Trustee appointed hereunder will execute, acknowledge and
deliver to the Issuer and to the predecessor Indenture Trustee an instrument
accepting such appointment, with a copy to the Note Rating Agencies, and
thereupon the resignation or removal of the predecessor Indenture Trustee will
become effective with respect to any Series, Class or Tranche as to which it is
resigning or being removed as Indenture Trustee, and such successor Indenture
Trustee, without any further act, deed or conveyance, will become vested with
all the rights, powers, trusts and duties of the predecessor Indenture Trustee
with respect to any such Series, Class or Tranche; but, on request of the
Issuer or the successor Indenture Trustee, such predecessor Indenture Trustee
will, upon payment of its reasonable charges, if any, execute and deliver an
instrument transferring to such successor Indenture Trustee all the rights,
powers and trusts of the predecessor Indenture Trustee, and will duly assign,
transfer and deliver to such successor Indenture Trustee all property and money
held by such predecessor Indenture Trustee hereunder with respect to all or any
such Series, Class or Tranche, subject nevertheless to its lien, if any,
provided for in Section 7.07. Upon request of any such successor Indenture
Trustee, the Issuer will execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Indenture Trustee all
such rights, powers and trusts.
In case of the appointment hereunder of a successor Indenture
Trustee with respect to the Notes of one or more (but not all) Series, Classes
or Tranches, the Issuer, the predecessor Indenture Trustee and each successor
Indenture Trustee with respect to the Notes of any applicable Series, Class or
Tranche will execute and deliver an Indenture Supplement which will contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to the Notes of any Series, Class or Tranche as to which the
predecessor Indenture Trustee is not being succeeded will continue to be vested
in the predecessor Indenture Trustee, and will add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such Indenture Supplement will
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee will be Indenture Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Indenture Trustee.
No successor Indenture Trustee with respect to any Series,
Class or Tranche of Notes will accept its appointment unless at the time of
such acceptance such successor Indenture Trustee will be qualified and eligible
under this Article VII.
Section 7.12 Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Indenture 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 Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Indenture Trustee, will be the successor of
the Indenture Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article VII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto. The
Indenture Trustee shall give prompt written notice of such merger, conversion,
consolidation or succession to the Note Rating Agencies. In case any Notes
shall have been authenticated, but not delivered, by the Indenture Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Indenture Trustee may adopt such authentication and deliver the
Notes so authenticated with the same effect as if such successor Indenture
Trustee had itself authenticated such Notes.
Section 7.13 Preferential Collection of Claims Against
Issuer. If and when the Indenture Trustee shall be or become a creditor of the
Issuer (or any other obligor upon the Notes), the Indenture Trustee will be
subject to the provisions of Section 311 of the Trust Indenture Act. An
Indenture Trustee who has resigned or been removed will be subject to
subsection 311(a) of the Trust Indenture Act to the extent provided therein.
Section 7.14 Appointment of Authenticating Agent. At any time
when any of the Notes remain Outstanding the Indenture Trustee, with the
approval of the Issuer, may appoint an Authenticating Agent or Agents with
respect to one or more Series, Classes or Tranches of Notes which will be
authorized to act on behalf of the Indenture Trustee to authenticate Notes of
such Series, Classes or Tranches issued upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.06, 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 Indenture
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Indenture Trustee or the Indenture
Trustee's Certificate of Authentication, such reference will be deemed to
include authentication and delivery on behalf of the Indenture Trustee by an
Authenticating Agent and a Certificate of Authentication executed on behalf of
the Indenture Trustee by an Authenticating Agent. Each Authenticating Agent
will be acceptable to the Issuer and will at all times be a corporation
organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, authorized under such laws to
act as an Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and, if other than the Issuer itself, subject to
supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent will be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent will cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent will resign immediately
in the manner and with the effect specified in this Section. The initial
Authenticating Agent for the Notes of all Series, Classes and Tranches will be
Xxxxx Fargo Bank, National Association.
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 Indenture Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Indenture Trustee and to the Issuer. The
Indenture Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and 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 Indenture Trustee, with the
approval of the Issuer, may appoint a successor Authenticating Agent which will
be acceptable to the Issuer and will give notice to each Noteholder as provided
in Section 1.06. 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 Indenture 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 Indenture Trustee will be entitled to be reimbursed for such
payments, subject to the provisions of Section 7.07.
If an appointment with respect to one or more Series, Classes
or Tranches is made pursuant to this Section, the Notes of such Series, Classes
or Tranches may have endorsed thereon, in addition to the Indenture Trustee's
Certificate of Authentication, an alternate Certificate of Authentication in
the following form:
This is one of the Notes of the Series, Classes or Tranches
designated therein referred to in the within-mentioned Indenture.
XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as
Indenture Trustee
By: ___________________________
As Authenticating Agent
By: ___________________________
Authorized Signatory
Section 7.15 Tax Returns. In the event that the Issuer shall
be required to file tax returns, the Servicer shall prepare or shall cause to
be prepared such tax returns and shall provide such tax returns to the Owner
Trustee or the Beneficiary for signature at least 5 days before such tax
returns are due to be filed. The Issuer, in accordance with the terms of each
Indenture Supplement, shall also prepare or shall cause to be prepared all tax
information required by law to be distributed to Noteholders and shall deliver
such information to the Indenture Trustee at least 5 days prior to the date it
is required by law to be distributed to Noteholders. The Indenture Trustee,
upon written request, will furnish the Servicer with all such information known
to the Indenture Trustee as may be reasonably requested and required in
connection with the preparation of all tax returns of the Issuer, and shall,
upon request, execute such returns. In no event shall the Indenture Trustee or
the Owner Trustee be personally liable for any liabilities, costs or expenses
of the Issuer or any Noteholder arising under any tax law, including federal,
state or local income or excise taxes or any other tax imposed on or measured
by income (or any interest or penalty with respect thereto arising from a
failure to comply therewith).
Section 7.16 Representations and Covenants of the Indenture
Trustee
The Indenture Trustee represents, warrants and covenants
that:
(a) The Indenture Trustee is a national banking
association duly organized and validly existing under the laws of the United
States of America;
(b) The Indenture Trustee has full power and
authority to deliver and perform this Indenture and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Indenture and other documents to which it is a party; and
(c) Each of this Indenture and other documents to
which it is a party has been duly executed and delivered by the Indenture
Trustee and constitutes its legal, valid and binding obligation in accordance
with its terms.
Section 7.17 Custody of Collateral Certificates and
Collateral. Unless otherwise specified in the related Asset Pool Supplement,
each Collateral Certificate shall be registered in the name of and shall be
delivered to and held by the applicable Collateral Agent in the State of New
York separate and apart from all other property held by such Collateral Agent.
The Collateral Agent shall hold such of the Collateral as constitutes a
Permitted Investment and all other Collateral in accordance with the related
Asset Pool Supplement.
Section 7.18 Indenture Trustee's Application for Instructions
from the Issuer. Any application by the Indenture Trustee for written
instructions from the Issuer may, at the option of the Indenture Trustee, set
forth in writing any action proposed to be taken or omitted by the Indenture
Trustee under and in accordance with this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective,
provided that such application shall make specific reference to this Section
7.18. The Indenture Trustee shall not be liable for any action taken by, or
omission of, the Indenture Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than 5 Business Days after the date any officer of the Issuer
actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Indenture
Trustee shall have received written instructions in response to such
application specifying the action be taken or omitted.
[END OF ARTICLE VII]
ARTICLE VIII
NOTEHOLDERS' MEETINGS, LISTS, REPORTS
BY INDENTURE TRUSTEE, ISSUER AND BENEFICIARY
Section 8.01 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee:
(a) not more than 15 days after each Record Date, in
such form as the Indenture Trustee may reasonably require, a list of the names
and addresses of the Registered Noteholders of such Series, Classes or Tranches
as of such date, and
(b) at such other times as the Indenture 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;
provided, however, that so long as the Indenture Trustee is the Note Registrar,
no such list shall be required to be furnished.
Section 8.02 Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee will preserve, in as
current a form as is reasonably practicable, the names and addresses of
Registered Noteholders contained in the most recent list furnished to the
Indenture Trustee as provided in Section 8.01 and the names and addresses of
Registered Noteholders received by the Indenture Trustee in its capacity as
Note Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in Section 8.01 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") (or, if there are
less than 3 such Holders, all of the Holders) apply in writing to the Indenture
Trustee, and furnish to the Indenture 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 Indenture 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 Indenture Trustee in
accordance with subsection 8.02(a), or
(ii) inform such applicants as to the
approximate number of Holders of Notes of such Series, Class or
Tranche or all Notes, as the case may be, whose names and addresses
appear in the information preserved at the time by the Indenture
Trustee in accordance with subsection 8.02(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 Indenture Trustee shall elect not to afford
such applicants access to such information, the Indenture Trustee shall, upon
the written request of such applicants, mail to each Holder of a Registered
Note of such Series, Class or Tranche or to all Registered Noteholders, as the
case may be, whose names and addresses appear in the information preserved at
the time by the Indenture Trustee in accordance with subsection 8.02(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 Indenture 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
Indenture Trustee shall 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 Indenture Trustee, such mailing would be
contrary to the best interests of the Holders of Notes of such Series, Class or
Tranche or all Noteholders, as the case may be, or would be in violation of
applicable law. Such written statement will specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall 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 shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Indenture Trustee will mail copies of
such material to all Registered Noteholders of such Series, Class or Tranche or
all Registered Noteholders, as the case may be, with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Indenture 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 Indenture Trustee that neither the
Issuer nor the Indenture 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 subsection 8.02(b), regardless of the source from
which such information was derived, and that the Indenture Trustee will not be
held accountable by reason of mailing any material pursuant to a request made
under subsection 8.02(b).
Section 8.03 Reports by Indenture Trustee.
(a) The term "reporting date" as used in this
Section means December 31. Within 60 days after the reporting date in each
year, beginning in 2003, the Indenture 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) To the extent required by the Trust Indenture
Act, the Indenture Trustee will mail each year to all Registered Noteholders,
with a copy to the Note Rating Agencies a report concerning:
(i) its eligibility and qualifications to
continue as trustee under this Indenture;
(ii) any amounts advanced by the Indenture
Trustee under this Indenture;
(iii) the amount, interest rate and
maturity date or indebtedness owing by the Issuer to each of the
Indenture Trustee and the Collateral Agent, each in its individual
capacity;
(iv) the property and funds physically held
by the related Collateral Agent as Collateral Agent of the Asset Pool
by which such Notes are secured;
(v) any release or release and substitution
of Collateral subject to the lien of the related Asset Pool Supplement
which has not previously been reported; and
(vi) any action taken by the Indenture
Trustee or the Collateral Agent, on behalf of the Indenture Trustee,
that materially affects the Notes and that has not previously been
reported.
(c) The Indenture Trustee will comply with
subsections 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 Indenture Trustee with each
stock exchange upon which the Notes are listed, and also with the Commission.
The Issuer will notify the Indenture Trustee when the Notes are admitted to
trading on any stock exchange.
Section 8.04 Meetings of Noteholders; Amendments and Waivers.
(a) If Notes of a Series, Class or Tranche are
issuable in whole or in part as Bearer Notes, a meeting of Noteholders of the
Notes of such Series, Class or Tranche may be called at any time and from time
to time pursuant to this Section 8.04 to make, give or take any Action provided
by this Indenture or any Indenture Supplement to be made, given or taken by
Noteholders of such Series, Class or Tranche.
(b) The Indenture Trustee may call a meeting of the
Noteholders of any Series, Class or Tranche issuable in whole or in part as
Bearer Notes at any time for any purpose specified in this Indenture or any
Indenture Supplement. The Indenture 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
issuable in whole or in part as Bearer Notes. In any case, a meeting will be
called after notice is given to such Noteholders pursuant to Section 1.06.
(c) To be entitled to vote at any meeting of
Noteholders of any Series, Class or Tranche, a Person shall be (1) a Holder of
one or more Outstanding Notes of such Series, Class or Tranche, or (2) a Person
appointed by an instrument in writing as proxy for the Noteholder or
Noteholders of one or more Outstanding Notes of such Series, Class or Tranche
by the Noteholder or Noteholders. The only Person who shall be entitled to be
present or to speak at any meeting of Noteholders of any Series, Class or
Tranche shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Indenture Trustee and its counsel and any
representatives of the Issuer and its counsel.
(d) 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 any 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 more than 66 2/3% of the Outstanding Dollar Principal Amount of
that Series, Class or Tranche, as the case may be. However, any resolution with
respect to any Action which may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of
Outstanding Notes of a Series, Class or Tranche of Bearer Notes may be adopted
at any meeting at which a quorum is present only by the affirmative vote of the
Holders of not less than the specified percentage in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of such Series, Class or
Tranche. 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.
(e) The quorum at any meeting will be persons
holding or representing the Holders of more than 66 2/3% of the Outstanding
Dollar Principal Amount 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 an 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, 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.
(f) The ownership of Bearer Notes will be proved as
provided in subsection 1.04(c)(ii).
(g) The Issuer may make reasonable rules for other
matters relating to Action by or a meeting of Noteholders not otherwise covered
by this Section, including but not limited to the location or locations for
such meeting, the manner of voting at such meeting, the appointment and duties
of inspectors of the vote, the submission and examination of proxies,
certificates and other evidence of the right to vote and the appointment of a
chairperson for the meeting.
(h) As set forth in the applicable Pooling and
Servicing Agreement and the related Series Supplement, with respect to certain
actions requiring the consent or direction of Investor Certificateholders
holding a specified percentage of the aggregate unpaid amount outstanding of
Investor Certificates (whether by number of Series or percentage of all
outstanding Investor Certificates depending on the manner of voting or
consenting on such matter), including consenting to certain amendments and
terminating the related Master Trust, the Issuer, as holder of any Collateral
Certificate, will be deemed to have voted in accordance with the Investor
Certificateholders holding a majority of the aggregate Invested Amount
outstanding of such Investor Certificates which are entitled to vote or consent
on such matter; provided, however, that in the event Investor
Certificateholders holding equal portions of the Invested Amount of such
Investor Certificates vote in the positive and in the negative, without taking
into consideration the vote of the Issuer, as holder of such Collateral
Certificate, the Issuer shall be deemed to vote in the negative; provided
further, that if the Collateral Certificate is the sole Investor Certificate
outstanding which is entitled to vote or consent on such matter, the Issuer, as
holder thereof, will be deemed to have voted in the negative.
Section 8.05 Reports by Issuer to the Commission. The Issuer
will:
(a) file with the Indenture 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 Indenture 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 Indenture Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations;
and
(c) transmit by mail to all Registered Noteholders,
as their names and addresses appear in the Note Register, and notify all
Holders of Bearer Notes of such Series, Class or Tranche, by publication of
such notice in an Authorized Newspaper or as otherwise provided in the
applicable Indenture Supplement, within 30 days after the filing thereof with
the Indenture Trustee, such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
Section 8.06 Monthly Noteholders' Statement. On each
Determination Date the Issuer will, in cooperation with the Servicer of the
Master Trust and the Servicer under the Transfer and Servicing Agreement,
complete and deliver to the Indenture Trustee and the Master Trust Trustee
(with a copy to each Note Rating Agency), a Monthly Noteholders' Statement.
On each Payment Date, the Indenture Trustee shall make the
Monthly Noteholder's Statement available electronically and, with the consent
or at the direction of the Issuer, such other information regarding the Notes
and/or the Collateral as the Indenture Trustee may have in its possession, but
only with the use of a password provided by the Indenture Trustee or its agent
to such Person upon receipt by the Indenture Trustee from such Person of a
certification in a form acceptable to the Indenture Trustee; provided, however,
that the Indenture Trustee or its agent shall provide such password to the
parties to this Indenture and each Rating Agency without requiring such
certification; provided, further, however, that the Indenture Trustee shall
have no obligation to provide such information described in this Section 8.06
until it has received the requisite information from the Issuer or the
Servicer, as applicable. The Indenture Trustee will make no representation or
warranty as to the accuracy or completeness of such documents and will assume
no responsibility therefor.
The Indenture Trustee's internet website shall be initially
located at "xxx.XXXXxx.xxx" or at such other address as shall be specified by
the Indenture Trustee from time to time in writing to each Note Rating Agency,
each Noteholder and the parties to this Indenture and to the Transfer and
Servicing Agreement. In connection with providing access to the Indenture
Trustee's website, the Indenture Trustee may require registration and the
acceptance of a disclaimer. Other than as set forth in Section 7.01 hereof, the
Indenture Trustee shall not be liable for the electronic dissemination of
information as contemplated by this Section.
Section 8.07 Payment Instruction to Master Trust.
(a) Promptly after the receipt by the Issuer of each
Monthly Servicer's Certificate under the applicable Series Supplement, the
Issuer will, in cooperation with the Servicer, complete the Payment Instruction
and deliver a copy thereof to the Indenture Trustee and the Master Trust
Trustee.
(b) From time to time, the Issuer will notify the
Servicer of the information necessary to be provided by the Issuer under the
applicable section of the applicable Pooling and Servicing Agreement as
supplemented by any Series Supplement to calculate the Invested Amount of the
Collateral Certificate issued under that Pooling and Servicing Agreement.
[END OF ARTICLE VIII]
ARTICLE IX
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND
SERVICING AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 9.01 Supplemental Indentures and Amendments Without
Consent of Noteholders. Without the consent of the Holders of any Notes but
with prior notice to each Note Rating Agency, the Collateral Agent and the
Indenture Trustee, at any time and from time to time, upon delivery by the
Issuer to the Indenture Trustee and the Collateral Agent of an Officer's
Certificate to the effect that the Issuer reasonably believes that such
amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future, and, with respect to
subsections (a), (b), (d), (f) through (j) and (l) through (n) of this Section
9.01, upon delivery of an Issuer Tax Opinion, the Issuer may amend this
Indenture, including any Asset Pool Supplement, any Indenture Supplement or
enter into one or more Asset Pool Supplements or Indenture Supplements, in form
satisfactory to the Indenture Trustee and the Collateral Agent, for any of the
following purposes:
(a) to evidence the succession of another Entity to
the Issuer, and the assumption by any such successor of the covenants of the
Issuer herein and in the Notes; or
(b) to add to the covenants of the Issuer, or to
surrender any right or power herein conferred upon the Issuer by the Issuer,
for the benefit of the Holders of the Notes of any or all Series, Classes or
Tranches (and if such covenants or the surrender of such right or power are to
be for the benefit of less than all Series, Classes or Tranches of Notes,
stating that such covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified Series,
Classes or Tranches); or
(c) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture; or
(d) to add to this Indenture such provisions as may
be expressly permitted by the Trust Indenture Act, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act 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 Indenture Trustee hereunder
with respect to one or more Series, Classes or Tranches of Notes and to add to
or change any of the provisions of this Indenture as will be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Indenture Trustee, pursuant to Section 7.11; or
(g) to evidence and provide for the acceptance of
appointment by another corporation as a successor Collateral Agent under the
applicable Asset Pool Supplement with respect to the relevant Asset Pool and to
add to or change any of the provisions of such Asset Pool Supplement as will be
necessary to provide for or facilitate the administration of the trusts under
such Asset Pool Supplement by more than one Collateral Agent, to the extent
provided for in such Asset Pool Supplement; or
(h) to add any additional Early Amortization Events
or Events of Default in respect of the Notes of any or all Series, Classes or
Tranches (and if such additional Events of Default are to be in respect of less
than all Series, Classes or Tranches of Notes, stating that such Events of
Default are expressly being included solely for the benefit of one or more
specified Series, Classes or Tranches of Notes); or
(i) to provide for the consolidation of any Master
Trust and the Issuer into a single Entity or the transfer of assets in such
Master Trust to the Issuer after the termination of all Series of Investor
Certificates (other than the related Collateral Certificate or Certificates);
or
(j) if one or more additional Transferors under the
Transfer and Servicing Agreement or any Pooling and Servicing Agreement are
added to, or replaced under, the Transfer and Servicing Agreement or any such
Pooling and Servicing Agreement, or one or more additional Beneficiaries under
the Trust Agreement are added to, or replaced under, the Trust Agreement, to
make any necessary changes to the Indenture or any other related document; or
(k) to establish an Asset Pool and to set forth the
terms thereof, including the designation of Collateral thereto, and/or to add
to the rights of the Holders of Notes of any Series, Class or Tranche secured
by an Asset Pool; or
(l) to provide for additional or alternative forms
of credit enhancement for any Tranche of Notes; or
(m) to comply with any regulatory, accounting or tax
laws; or
(n) to qualify for sale treatment under generally
accepted accounting principles.
Additionally, notwithstanding any provision of this Article
IX to the contrary and in addition to (a) through (n) above, this Indenture,
including any Indenture Supplement or any Asset Pool Supplement, may also be
amended without the consent of the Indenture Trustee, the Collateral Agent or
any of the Noteholders, upon delivery of an Issuer Tax Opinion for the purpose
of adding any provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture, any Indenture Supplement or any Asset Pool
Supplement or of modifying in any manner the rights of the Holders of the Notes
under this Indenture, any Indenture Supplement or any Asset Pool Supplement;
provided, however, that (i) the Issuer shall deliver to the Indenture Trustee,
the Collateral Agent and the Owner Trustee an Officer's Certificate to the
effect that the Issuer reasonably believes that such amendment will not have an
Adverse Effect and is not reasonably expected to have an Adverse Effect at any
time in the future and that such amendment does not adversely affect the
rights, duties, benefits, protections, privileges or immunities of the
Indenture Trustee or the applicable Collateral Agent and (ii) each Note Rating
Agency confirms in writing that such amendment will not cause a Ratings Effect.
Section 9.02 Supplemental Indentures with Consent of
Noteholders. In addition to any amendment permitted pursuant to Section 9.01
hereof, with prior notice to each applicable Note Rating Agency and the consent
of Holders of more than 66 2/3% in Outstanding Dollar Principal Amount of each
Series, Class or Tranche of Notes affected by such amendment of this Indenture,
including any Asset Pool Supplement and any Indenture Supplement, by Act of
said Holders delivered to the Issuer, the Collateral Agent and the Indenture
Trustee, the Issuer, the Collateral Agent and the Indenture Trustee, as
applicable, upon delivery of an Issuer Tax Opinion, may enter into an amendment
of this Indenture 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 or any Indenture Supplement;
provided, however, that no such amendment of an Indenture Supplement will,
without the consent of the Holder of each Outstanding Note affected thereby:
(a) change the scheduled payment date of any payment
of interest on any Note, or change a Scheduled 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 Amortization Event or other optional or
mandatory redemption or upon the acceleration of its legal maturity date;
(d) impair the right to institute suit for the
enforcement of any payment on any Note;
(e) reduce the percentage in Outstanding Dollar
Principal Amount of the Outstanding Notes of any Series, Class or Tranche of
Notes, the consent of whose Holders is required for any such Indenture
Supplement, or the consent of whose Holders is required for any waiver of
compliance with the provisions of this Indenture or of defaults hereunder and
their consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or
Section 6.18, except to increase any percentage of Holders required to consent
to any such amendment or to provide that other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(g) permit the creation of any lien or other
encumbrance on the Collateral of any Asset Pool that secures any Tranche of
Notes that is prior to the lien in favor of the Holders of the Notes of such
Tranche;
(h) change any Place of Payment where any principal
of, or interest on, any Note is payable, unless otherwise provided in the
applicable Indenture Supplement;
(i) change the method of computing the amount of
principal of, or interest on, any Note on any date; or
(j) make any other amendment not permitted by
Section 9.01.
An amendment of this Indenture or an Indenture Supplement
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.
It will not be necessary for any Act of Noteholders under
this Section to approve the particular form of any proposed amendment or
Indenture Supplement, but it will be sufficient if such Act will approve the
substance thereof.
Section 9.03 Execution of Amendments and Indenture
Supplements. In executing or accepting the additional trusts created by any
amendment of this Indenture or Indenture Supplement permitted by this Article
IX or the modifications thereby of the trusts created by this Indenture, the
Indenture Trustee or the Collateral Agent, on behalf of the Indenture Trustee,
will be entitled to receive, and (subject to Section 7.01 or the applicable
provisions of the related Asset Pool Supplement) will be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
amendment or Indenture Supplement is authorized or permitted by this Indenture
and that all conditions precedent thereto have been satisfied. The Indenture
Trustee or the Collateral Agent, on behalf of the Indenture Trustee, may, but
will not (except to the extent required in the case of an amendment or
Indenture Supplement entered into under subsection 9.01(d) or 9.01(f)) be
obligated to, enter into any such amendment or Indenture Supplement which
affects the Indenture Trustee's or the Collateral Agent's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.04 Effect of Amendments and Indenture Supplements.
Upon the execution of any amendment of this Indenture or Indenture Supplement
under this Article IX, this Indenture will be modified in accordance therewith
with respect to each Series, Class or Tranche of Notes affected thereby, or all
Notes, as the case may be, and such amendment or Indenture Supplement 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 9.05 Conformity with Trust Indenture Act. Every
amendment of this Indenture or Indenture Supplement executed pursuant to this
Article IX will conform to the requirements of the Trust Indenture Act as then
in effect.
Section 9.06 Reference in Notes to Indenture Supplements.
Notes authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement pursuant to this Article IX may, and will if
required by the Indenture Trustee, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such amendment or Indenture
Supplement. If the Issuer will so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Issuer, to any such
amendment or Indenture Supplement may be prepared and executed by the Issuer
and authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
Section 9.07 Amendments to the Pooling and Servicing
Agreement. By their acceptance of a Note, the Noteholders acknowledge that the
Transferor and the Master Trust Trustee may amend the applicable 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.
For purposes of any vote or consent under a Pooling and
Servicing Agreement or any supplement thereto, with respect to certain actions
requiring the consent or direction of Investor Certificateholders holding a
specified percentage of the aggregate unpaid amount outstanding of Investor
Certificates (whether by number of Series or percentage of all outstanding
Investor Certificates depending on the manner of voting or consenting on such
matter), the Issuer, as holder of the Collateral Certificate, shall be deemed
to be an Investor Certificateholder under such Pooling and Servicing Agreement,
and will be deemed to have voted in accordance with the Investor
Certificateholders holding a majority of the aggregate Invested Amount
outstanding of such Investor Certificates which are entitled to vote or consent
on such matter; provided, however, that in the event Investor
Certificateholders holding equal portions of the Invested Amount outstanding of
such Investor Certificates vote in the positive and in the negative, without
taking into consideration the vote of the Issuer, as holder of such Collateral
Certificate, the Issuer shall be deemed to vote in the negative; provided
further, that if the Collateral Certificate is the sole Investor Certificate
outstanding entitled to vote or consent on such matter, the Issuer, as holder
thereof, will be deemed to have voted in the negative.
Section 9.08 Amendments to the Trust Agreement.
(a) Subject to the provisions of the Trust
Agreement, without the consent of the Holders of any Notes or the Indenture
Trustee, the Owner Trustee (at the written direction of the Beneficiary) and
the Beneficiary may amend the Trust Agreement so long as such amendment will
not have an Adverse Effect and is not reasonably expected to have an Adverse
Effect at any time in the future.
(b) Subject to the provisions of the Trust
Agreement, (A) in the case of a significant change in the permitted activities
of the Issuer which is not materially adverse to the Holders of the Notes,
with the consent of the Majority Holders of each Class or Tranche of Notes
affected by such change, and (B) in all other cases, with the consent of the
Holders of more than 66 2/3% in Outstanding Dollar Principal Amount of the
Outstanding Notes affected by such amendment, by action of said Holders
delivered to Chase USA and the Owner Trustee (at the written direction of the
Beneficiary), the Beneficiary may amend the Trust Agreement for the purpose of
adding, changing or eliminating any provisions of the Trust Agreement or of
modifying the rights of those Noteholders.
[END OF ARTICLE IX]
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 10.01 Payment of Principal and Interest. With respect
to each Series, Class or Tranche of Notes, the Issuer will duly and punctually
pay the principal of and interest on such Notes in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in this Indenture for the benefit of, the
Notes of such Series, Class or Tranche.
Section 10.02 Maintenance of Office or Agency. The Issuer
will maintain an office or agency 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 Indenture 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
Indenture Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee its
agent to receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more
other offices or agencies where the Notes of one or more Series, Classes or
Tranches may be presented or surrendered for any or all of such purposes
specified above and may constitute and appoint one or more Paying Agents for
the payments of such Notes, in one or more other cities, and may from time to
time rescind such designations and appointments; provided, however, that no
such designation, appointment or rescission shall in any matter relieve the
Issuer of its obligations to maintain an office or agency in each Place of
Payment for Notes of any Series, Class or Tranche for such purposes. The Issuer
will give prompt written notice to the Indenture Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless and until the Issuer rescinds one or more of such
appointments, the Issuer hereby appoints the Indenture Trustee, at its
principal office, as its Paying Agent in Minneapolis, Minnesota with respect to
all Series, Classes and Tranches of Notes having a Place of Payment in the City
of Minneapolis, Minnesota.
Section 10.03 Money for Note Payments to be Held in Trust.
The Paying Agent, on behalf of the Indenture Trustee, will make distributions
to Noteholders from the Collection Account of the applicable Asset Pool or
other applicable Bank Account pursuant to the provisions of any Asset Pool
Supplement or any Indenture Supplement and will report the amounts of such
distributions to the Indenture Trustee. Any Paying Agent will have the
revocable power to withdraw funds from the Collection Account of the applicable
Asset Pool or other applicable Bank Account for the purpose of making the
distributions referred to above. The Indenture Trustee may revoke such power
and remove the Paying Agent if the Indenture Trustee determines in its sole
discretion that the Paying Agent has failed to perform its obligations under
this Indenture or any Indenture Supplement in any material respect. The Paying
Agent upon removal will return all funds in its possession to the Indenture
Trustee.
The Issuer will cause each Paying Agent (other than the
Indenture Trustee) for any Series, Class or Tranche of Notes to execute and
deliver to the Indenture Trustee an instrument in which such Paying Agent will
agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying
Agent, it so agrees), subject to the provisions of this Section, that such
Paying Agent will:
(a) hold all sums held by it for the payment of
principal of or interest on Notes of such Series, Class or Tranche in trust for
the benefit of the Persons entitled thereto until such sums will be paid to
such Persons or otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture
Trustee, give the Indenture 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;
(c) if such Paying Agent is not the Indenture
Trustee, at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if
such Paying Agent is not the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums held by it in trust for the payment of Notes if at any time it
ceases to meet the standards described in this Section required to be met by a
Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Internal
Revenue Code or any other applicable tax law with respect to the withholding
from any payments made by it on any Notes of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith.
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 an Officer's
Certificate direct any Paying Agent to pay, to the Indenture 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 Indenture 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 Indenture
Trustee, such Paying Agent will be released from all further liability with
respect to such money.
Any money deposited with the Indenture Trustee or any Paying
Agent, or then held by the Issuer, in trust for the payment of the principal of
or interest on any Note of any Series, Class or Tranche and remaining unclaimed
for two years after such principal or interest has become due and payable will
be paid to the Issuer upon request in an Officer's Certificate, or (if then
held by the Issuer) will be discharged from such trust; and the Holder of such
Note will thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof, and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuer as
trustee thereof, will thereupon cease. The Indenture Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Issuer give to the Holders of the Notes as to which the money to be repaid
was held in trust, as provided in Section 1.06, 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 or
published 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.
Each Paying Agent will at all times have a combined capital
and surplus of at least $50,000,000 and be subject to supervision or
examination by a United States federal or state authority or be regulated by or
subject to the supervision or examination of a governmental authority of a
nation that is member of the Organization for Economic Co-operation and
Development. If such Paying Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Paying Agent will be deemed to be its combined
capital and surplus as set forth in its most recent report of condition as so
published.
Section 10.04 Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee and the Note Rating Agencies, on or before
April 30 of each year, beginning in 2003, a written statement signed by an
Issuer Authorized Officer stating that:
(a) a review of the activities of the Issuer during
the prior year and of the Issuer's performance under this Indenture and under
the terms of the Notes has been made under such Issuer Authorized Officer's
supervision; and
(b) to the best of such Issuer Authorized Officer's
knowledge, based on such review, the Issuer has complied in all material
respects with all conditions and covenants under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such condition
or covenant (without regard to any grace period or requirement of notice),
specifying each such default known to such Issuer Authorized Officer and the
nature and status thereof.
Section 10.05 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 10.06 Further Instruments and Acts. Upon request of
the Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 10.07 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 10.08 Notice of Events of Default. The Issuer agrees
to give the Indenture Trustee and the Note Rating Agencies prompt written
notice of each Event of Default hereunder and each breach on the part of the
Master Trust or the Transferor of its respective obligations under the Pooling
and Servicing Agreement and any default of a Derivative Counterparty.
Section 10.09 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 including foreign withholding);
(b) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien in favor of the Indenture Trustee,
the Collateral Agent and the Noteholders created by this Indenture and the
applicable Asset Pool Supplement 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
Indenture Trustee, the Collateral Agent and the Noteholders created by this
Indenture) to be created on or extend to or otherwise arise upon or burden the
Collateral designated for inclusion in an Asset Pool or any part thereof or any
interest therein or the proceeds thereof;
(d) permit the lien in favor of the Indenture
Trustee, the Collateral Agent and the Noteholders created by this Indenture and
the applicable Asset Pool Supplement not to constitute a valid first priority
security interest in the Collateral designated for inclusion in an Asset Pool;
or
(e) voluntarily dissolve or liquidate.
Section 10.10 No Other Business. The Issuer will not engage
in any business other than as permitted under the Trust Agreement.
Section 10.11 Rule 144A Information. For so long as any of
the Notes of any Series, Class or Tranche are "restricted securities" within
the meaning of Rule 144(a)(3) under the Securities Exchange Act, the Issuer
agrees to provide to any Noteholder of such Series, Class or Tranche and to any
prospective purchaser of Notes designated by such Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such Holder or prospective purchaser to satisfy the conditions set
forth in Rule 144A(d)(4) under the Securities Exchange Act.
Section 10.12 Performance of Obligations; Servicing of
Receivables.
(a) The Issuer will not take any action and will use
its best efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or obligations
under any instrument or agreement included in the Collateral or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture, the Trust Agreement,
the Transfer and Servicing Agreement, the applicable Pooling and Servicing
Agreement or such other instrument or agreement.
(b) The Issuer will punctually perform and observe
all of its obligations and agreements contained in this Indenture, any
Indenture Supplement, the Trust Agreement and in the instruments and agreements
(including but not limited to, the applicable Pooling and Servicing Agreement)
relating to the Collateral designated for inclusion in each Asset Pool,
including but not limited to filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of
this Indenture and the Trust Agreement in accordance with and within the time
periods provided for herein and therein. Except as otherwise expressly provided
herein or therein, the Issuer shall not waive, amend, modify, supplement or
terminate this Indenture, any Indenture Supplement or the Trust Agreement or
any provision thereof without the consent of the Majority Holders of the Notes
of each adversely affected Series, Class or Tranche of Notes.
Section 10.13 Issuer May Consolidate, Etc., Only on Certain
Terms.
(a) The Issuer shall not consolidate or merge with
or into any other Person, unless:
(i) the Person (if other than the Issuer)
formed by or surviving such consolidation or merger (i) shall be a
Person organized and existing under the laws of the United States of
America or any state or the District of Columbia, (ii) shall not be
subject to regulation as an "investment company" under the Investment
Company Act and (iii) shall expressly assume, by an Indenture
Supplement, executed and delivered to the Indenture Trustee, in a form
satisfactory to the Indenture Trustee, the due and punctual payment of
the principal of and interest on all Notes and the performance of
every covenant of this Indenture on the part of the Issuer to be
performed or observed;
(ii) immediately after giving effect to
such transaction, no Event of Default or Early Amortization Event
shall have occurred and be continuing;
(iii) the Issuer shall have delivered to
the Indenture Trustee an Officer's Certificate and an Opinion of
Counsel each stating that (i) such consolidation or merger and such
Indenture Supplement comply with this Section 10.13, (ii) all
conditions precedent in this Section 10.13 relating to such
transaction have been complied with (including any filing required by
the Securities Exchange Act), and (iii) such Indenture Supplement is
duly authorized, executed and delivered and is valid, binding and
enforceable against such Person;
(iv) the Issuer shall have received written
confirmation from each Note Rating Agency that there will be no
Ratings Effect with respect to any Outstanding Notes as a result of
such consolidation or merger;
(v) the Issuer shall have received (and
shall have delivered copies thereof to the Indenture Trustee) an
Issuer Tax Opinion and a Master Trust Tax Opinion;
(vi) any action that is necessary to
maintain the lien and security interest created by this Indenture
shall have been taken; and
(vii) such action shall not be contrary to
the status of the Issuer as a qualified special purpose entity under
existing accounting literature.
(b) The Issuer shall not convey or transfer any of
its properties or assets, including those included in the Collateral,
substantially as an entirety to any Person, unless:
(i) the Person that acquires by conveyance
or transfer the properties and assets of the Issuer the conveyance or
transfer of which is hereby restricted shall (A) be a United States
citizen or a Person organized and existing under the laws of the
United States of America or any state, or the District of Columbia,
(B) expressly assume, by an Indenture Supplement, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree
by means of such Indenture Supplement that all right, title and
interest so conveyed or transferred shall be subject and subordinate
to the rights of Holders of the Notes, (D) expressly agree by means of
such Indenture Supplement that such Person (or if a group of Persons,
then one specified Person) shall make all filings with the Commission
(and any other appropriate Person) required by the Securities Exchange
Act in connection with the Notes and (E) not be an "investment
company" as defined in the Investment Company Act;
(ii) immediately after giving effect to
such transaction, no Event of Default or Early Amortization Event
shall have occurred and be continuing;
(iii) the Issuer shall have received
written confirmation from each Note Rating Agency that there will be
no Ratings Effect with respect to any Outstanding Notes as a result of
such conveyance or transfer;
(iv) the Issuer shall have received (and
shall have delivered copies thereof to the Indenture Trustee) an
Issuer Tax Opinion and a Master Trust Tax Opinion;
(v) any action that is necessary to
maintain the lien and security interest created by this Indenture
shall have been taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such Indenture
Supplement comply with this Section 10.13 and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Securities
Exchange Act).
Section 10.14 Successor Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Issuer substantially as an entirety in accordance with Section 10.13 hereof,
the Person formed by or surviving such consolidation or merger (if other than
the Issuer) or the Person to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein. In the event of any such conveyance or transfer,
the Person named as the Issuer in the first paragraph of this Indenture or any
successor which shall theretofore have become such in the manner prescribed in
this Section 10.14 shall be released from its obligations under this Indenture
as issued immediately upon the effectiveness of such conveyance or transfer,
provided that the Issuer shall not be released from any obligations or
liabilities to the Indenture Trustee or the Noteholders arising prior to such
effectiveness.
Section 10.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture or the Trust Agreement,
the Issuer shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Section 10.16 Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
Section 10.17 Restricted Payments. The Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Owner Trustee or any owner of a beneficial interest
in the Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be made, (x)
distributions as contemplated by, and to the extent funds are available for
such purpose under, the Trust Agreement and (y) payments to the Indenture
Trustee pursuant to Section 7.07 hereof. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture or any Indenture Supplement.
Section 10.18 No Borrowing. The Issuer will not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
additional indebtedness, except pursuant to a subordinated note or as otherwise
provided in the Issuer's charter documents.
[END OF ARTICLE X]
ARTICLE XI
EARLY AMORTIZATION OF NOTES
Section 11.01 Applicability of Article. Unless otherwise
specified in the applicable Indenture Supplement related to a Series, Class or
Tranche of Notes, pursuant to the terms of this Article XI, 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 Amortization Event. Unless
otherwise specified in the applicable Indenture Supplement relating to a
Series, Class or Tranche of Notes, or in the form of Notes for such Series,
Class or Tranche, the following are "Early Amortization Events":
(a) the occurrence of an Event of Default and
acceleration of the Notes of a Series, Class or Tranche pursuant to Article VI
hereof;
(b) with respect to any Series, Class or Tranche of
Notes, the occurrence of the Scheduled Principal Payment Date of such Series,
Class or Tranche of Notes;
(c) the Issuer becomes an investment company within
the meaning of the Investment Company Act;
(d) any Transferor shall consent to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to all or substantially all of its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the premises
for the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against such Transferor; or such Transferor shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or
(e) with respect to any Series, Class or Tranche of
Notes, any additional Early Amortization Event specified in the Indenture
Supplement for such Series, Class or Tranche of Notes as applying to such
Series, Class or Tranche of Notes.
The repayment price of a Tranche of Notes so redeemed will
equal the Outstanding Dollar Principal Amount of such Tranche, plus accrued,
past due and additional interest to but excluding the date of repayment, the
payment of which will be subject to the allocations, deposits and payments
sections of the related Asset Pool Supplement and Indenture Supplement.
If the Issuer is unable to pay the repayment price in full on
the Principal Payment Date following the end of the Monthly Period in which the
Early Amortization Event occurs, monthly payments on such Tranche of Notes will
thereafter be made on each following Principal Payment Date until the
Outstanding Dollar Principal Amount of such Series, Class or Tranche, plus all
accrued, past due and additional interest, is paid in full or the Legal
Maturity Date occurs, whichever is earlier, subject to the allocations,
deposits and payments sections of the related Asset Pool Supplement and
Indenture Supplement. Any funds in any Supplemental Bank Account for a repaid
Tranche will be applied to make the principal and interest payments on that
Tranche on the repayment date, subject to the allocations, deposits and
payments sections of the related Asset Pool Supplement and Indenture
Supplement.
Section 11.02 Optional Repurchase. Unless otherwise provided
in the applicable Indenture Supplement for a Series, Class or Tranche of Notes,
the Servicer has the right, but not the obligation, to redeem a Series, Class
or Tranche of Notes in whole but not in part on any Payment Date on or after
the Payment Date on which the aggregate Outstanding Dollar Principal Amount
(after giving effect to all payments on such Payment Date) of such Series,
Class or Tranche of Notes is reduced to less than 10% of its highest
Outstanding Dollar Principal Amount at any time (or such other percentage as
shall be specified from time to time by the Servicer, consistent with sale
treatment under GAAP and regulatory accounting principles); provided, however,
that if such Class or Tranche of Notes redeemed is of a Subordinated Class or
Tranche of Notes, the Servicer will not redeem such Notes if the provisions of
the related Indenture Supplement would prevent the payment of such Subordinated
Notes until a level of prefunding of the Principal Funding Accounts for the
Senior Classes of Notes for that Series has been reached such that the amount
of such deficiency in the required subordination of a Senior Class of Notes is
no longer required to provide subordination protection for the Senior Classes
of that Series.
If the Servicer elects to redeem a Series, Class or Tranche
of Notes, it will cause the Issuer to notify the Holders of such redemption at
least 30 days prior to the redemption date. Unless otherwise specified in the
Indenture Supplement or Terms Document applicable to the Notes to be so
redeemed, the redemption price of a Series, Class or Tranche so redeemed will
equal 100% of the Outstanding Dollar Principal Amount of such Tranche, plus
accrued, unpaid and additional interest or principal accreted and unpaid on
such Tranche to but excluding the date of redemption, the payment of which will
be subject to the allocations, deposits and payments sections of the related
Asset Pool Supplement and Indenture Supplement.
If the Issuer is unable to pay the redemption price in full
on the redemption date, monthly payments on such Series, Class or Tranche of
Notes will thereafter be made until either the Outstanding Dollar Principal
Amount of such Series, Class or Tranche, plus all accrued, unpaid and
additional interest, is paid in full or the Legal Maturity Date occurs,
whichever is earlier, subject to Article V, Article VI and the allocations,
deposits and payments sections of the related Indenture Supplement. Any funds
in any Supplemental Bank Account for a redeemed Tranche will be applied to make
the principal and interest payments on that Tranche on the redemption date in
accordance with the related Indenture Supplement. Principal payments on
redeemed Tranches will be made in accordance with the related Indenture
Supplement.
Section 11.03 Notice. Promptly after the occurrence of any
Early Amortization Event or a redemption pursuant to Section 11.02, the Issuer
will notify the Indenture Trustee and the Note Rating Agencies in writing of
the identity, Stated Principal Amount and Outstanding Dollar Principal Amount
of the affected Series, Class or Tranche of Notes to be redeemed. Notice of
redemption will promptly be given as provided in Section 1.06. All notices of
redemption will state (a) the date on which the redemption of the applicable
Series, Class or Tranche of Notes pursuant to this Article XI will begin, which
will be the Principal Payment Date next following the end of the Monthly Period
in which the applicable Early Amortization Event or redemption pursuant to
Section 11.02 occurs, (b) the repayment price for such Series, Class or Tranche
of Notes and (c) the Series, Class or Tranche of Notes to be redeemed pursuant
to this Article XI.
[END OF ARTICLE XI]
ARTICLE XII
MISCELLANEOUS
Section 12.01 No Petition. The Indenture Trustee, by entering
into this Indenture, each Derivative Counterparty, by accepting its rights as a
third party beneficiary hereunder, each Supplemental Credit Enhancement
Provider or Supplemental Liquidity Provider, as applicable, by accepting its
rights as a third party beneficiary hereunder, and each Noteholder, by
accepting a Note, agrees, to the fullest extent permitted by applicable law,
that it will not at any time institute against the Transferor, any Master Trust
or the Issuer, or join in any institution against the Transferor, any Master
Trust 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, any Derivative Agreement, any
Supplemental Credit Enhancement Agreement and any Supplemental Liquidity
Agreement.
Section 12.02 Trust Obligations. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer or the Owner Trustee or of any successor or
assign of the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Owner Trustee
has no such obligations in its individual capacity).
Section 12.03 Limitations on Liability.
(a) It is expressly understood and agreed by the
parties hereto that (i) this Indenture is executed and delivered by Chase USA
not individually or personally but solely as Beneficiary, in the exercise of
the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or
agreement by Chase USA but is made and intended for the purpose of binding only
the Issuer, (iii) nothing herein contained will be construed as creating any
liability on Chase USA individually or personally, to perform any covenant of
the Issuer either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties to this Indenture and by any Person
claiming by, through or under them and (iv) under no circumstances will Chase
USA 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.
(b) None of the Indenture Trustee, the Owner
Trustee, Chase USA or any other beneficiary of the Issuer or any of their
respective officers, directors, employers or agents will have any liability
with respect to this Indenture, and recourse of any Noteholder may be had
solely to the Collateral designated for inclusion in the specific Asset Pool
and pledged to secure the applicable Notes.
Section 12.04 Tax Treatment. The Issuer and the Noteholders
agree that the Notes are intended to be debt 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 12.05 Actions Taken by the Issuer. Any and all
actions that are to be taken by the Issuer may be taken by either the
Beneficiary or the Owner Trustee on behalf of the Issuer.
Section 12.06 Alternate Payment Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the
Issuer, with the written consent of the Indenture Trustee, may enter into any
agreement with any Holder of a Note providing for a method of payment or notice
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer will furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee will cause payments or notices,
as applicable, to be made in accordance with such agreements.
Section 12.07 Termination of Issuer. The Issuer and the
respective obligations and responsibilities of the Indenture Trustee created
hereby (other than the obligation of the Indenture Trustee to make payments to
Noteholders as hereinafter set forth) shall terminate, except with respect to
the duties described in Section 12.08(b), as provided in the Trust Agreement.
Section 12.08 Final Distribution.
(a) The Servicer shall give the Indenture Trustee
written notice of the Payment Date on which the Noteholders of any Series,
Class or Tranche may surrender their Notes for payment of the final
distribution on and cancellation of such Notes at least 2 Business Days prior
to the fifth day of the month in which the final distribution is to occur with
respect to such Notes. Not later than the fifth day of the month in which the
final distribution in respect of such Series, Class or Tranche is payable to
Noteholders, the Indenture Trustee shall provide notice to Noteholders of such
Series, Class or Tranche specifying (i) the date upon which final payment of
such Series, Class or Tranche will be made upon presentation and surrender of
Notes of such Series, Class or Tranche at the office or offices therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such payment date is not applicable, payments
being made only upon presentation and surrender of such Notes at the office or
offices therein specified (which, in the case of Bearer Notes, shall be outside
the United States). The Indenture Trustee shall give such notice to the Note
Registrar and the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the
Noteholders of any Series, Class or Tranche of Notes (or the termination of the
Issuer), except as otherwise provided in this clause, all funds then on deposit
in any Bank Account allocated to such Noteholders shall continue to be held in
trust for the benefit of such Noteholders, and the Paying Agent or the
Indenture Trustee shall pay such funds to such Noteholders upon surrender of
their Notes, if certificated. In the event that all such Noteholders shall not
surrender their Notes for cancellation within 6 months after the date specified
in the notice from the Indenture Trustee described in paragraph (a), the
Indenture Trustee shall give a second notice to the remaining such Noteholders
to surrender their Notes for cancellation and receive the final distribution
with respect thereto (which surrender and payment, in the case of Bearer Notes,
shall be outside the United States). If within one year after the second notice
all such Notes shall not have been surrendered for cancellation, the Indenture
Trustee may take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining such Noteholders concerning surrender of their
Notes, and the cost thereof shall be paid out of the funds in the Collection
Account or any Supplemental Bank Account held for the benefit of such
Noteholders. The Indenture Trustee and the Paying Agent shall pay to the Issuer
any monies held by them for the payment of principal or interest that remains
unclaimed for 2 years. After payment to the Issuer, Noteholders entitled to the
money must look to the Issuer for payment as general creditors unless an
applicable abandoned property law designates another Person.
Section 12.09 Termination Distributions. Upon the termination
of the Issuer pursuant to the terms of the Trust Agreement, the Indenture
Trustee shall release, assign and convey to the Beneficiary or any of its
designees, without recourse, representation or warranty, all of its right,
title and interest in the Collateral designated for inclusion in an Asset Pool,
whether then existing or thereafter created, all monies due or to become due
and all amounts received or receivable with respect thereto (including all
moneys then held in any Bank Account) and all proceeds thereof, except for
amounts held by the Indenture Trustee pursuant to Section 12.08(b). The
Indenture Trustee shall execute and deliver such instruments of transfer and
assignment as shall be provided to it, in each case without recourse, as shall
be reasonably requested by the Beneficiary to vest in the Beneficiary or any of
its designees all right, title and interest which the Indenture Trustee had in
the Collateral and such other property designated for inclusion in an Asset
Pool.
Section 12.10 Derivative Counterparty, Supplemental Credit
Enhancement Provider and Supplemental Liquidity Provider as Third-Party
Beneficiary. Each Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider is a third-party beneficiary of
this Indenture to the extent specified in the applicable Derivative Agreement,
Supplemental Credit Enhancement Agreement, Supplemental Liquidity Agreement or
Indenture Supplement.
Section 12.11 Notices.
(a) in the case of Issuer, to:
Chase Issuance Trust
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
with a copy to:
Chase Manhattan Bank USA, National Association
000 Xxxxx Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: [ ]
Fax: [ ]
with a copy to:
JPMorgan Chase & Co.
1 Bank One Plaza, Suite IL1 0460
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
(b) in the case of the Indenture Trustee, to:
Xxxxx Fargo Bank, National Association
6th & Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Asset Backed Administration
Fax: (000) 000-0000
[END OF ARTICLE XII]
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CHASE ISSUANCE TRUST
By: CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, as
Beneficiary and not in its individual capacity
By:
------------------------------------
Name: _______________________________
Title: _______________________________
XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Indenture
Trustee and not in its individual capacity
By:
------------------------------------
Name: _______________________________
Title: _______________________________
Acknowledged and Accepted:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Servicer
By:
--------------------------------
Name:
Title:
STATE OF DELAWARE )
) 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 a ___________ of Chase Manhattan Bank USA, National
Association, acting not in its individual capacity but solely as Beneficiary of
the Chase Issuance Trust, one of the parties described in and which executed
the above instrument; that he knows the corporate seal of the Beneficiary; 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 [ ], 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 INVESTMENT LETTER
[Date]
Xxxxx Fargo Bank,
National Association,
as Indenture Trustee,
Sixth & Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services Asset Backed Administration
Chase Issuance Trust
c/o Chase Manhattan Bank USA, National Association, as Beneficiary
Xxxxx Xxxx Center Building 000
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: [ ]
Re: Purchase of $___________ principal amount of
Chase Issuance Trust, Series [o], Class [o] Notes
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "Notes") we
confirm that:
(1) We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are being sold
to us in a transaction that is exempt from the registration requirements of the
Securities Act.
(2) Any information we desire concerning the Notes or any other matter
relevant to our decision to purchase the Notes is or has been made available to
us.
(3) We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Notes, and we (and any account for which we are purchasing under paragraph
(4) below) are able to bear the economic risk of an investment in the Notes. We
(and any account for which we are purchasing under paragraph (iv) below) are an
"accredited investor" (as such term is defined in Rule 501(a)(1), (2) or (3) of
Regulation D under the Securities Act).
(4) We are acquiring the Notes for our own account or for accounts as
to which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that the
disposition of our property shall at all times be and remain within our
control.
(5) We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available.
(6) We agree that in the event that at some future time we wish to
dispose of or exchange any of the Notes (such disposition or exchange not being
currently foreseen or contemplated), we will not transfer or exchange any of
the Notes unless:
(a) (i) the sale is of at least U.S. $250,000 principal
amount of Notes to an Eligible Purchaser (as defined below), (ii) a letter to
substantially the same effect as paragraphs (1), (2), (3), (4), (5) and (6) of
this letter is executed promptly by the purchaser and (3) all offers or
solicitations in connection with the sale, whether directly or through any
agent acting on our behalf, are limited only to Eligible Purchasers and are not
made by means of any form of general solicitation or general advertising
whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than two years; or
(c) the Notes are sold in any other transaction that does not
require registration under the Securities Act and, if the Issuer, the Servicer,
the Indenture Trustee or the Note Registrar so requests, we theretofore have
furnished to such party an opinion of counsel satisfactory to such party, in
form and substance satisfactory to such party, to such effect; or
(d) the Notes are transferred pursuant to an exception from
the registration requirements of the Securities Act under Rule 144A under the
Securities Act; and
(7) We understand that the Notes will bear a legend to substantially
the following effect:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF
ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
This legend may be removed if the Issuer, the Indenture Trustee and
the Note Registrar have received an opinion of counsel, in form and substance
satisfactory to them, to the effect that the legend may be removed.
"Eligible Purchaser" means either an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein. "Eligible Dealer" means
any corporation or other entity the principal business of which is acting as a
broker and/or dealer in securities. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Amended and Restated
Indenture, dated as of October 15, 2004, between the Chase Issuance Trust and
Xxxxx Fargo Bank, National Association, as indenture trustee.
Very truly yours,
__________________________
(Name of Purchaser)
By:________________________
(Authorized officer)
Exhibit B-1
FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE INDENTURE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
CHASE ISSUANCE TRUST,
Series [o], Class [o] Notes
[Insert title or sufficient description of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of
the Series [o], Class [o] Notes to be exchanged for definitive Notes (the
"Submitted Portion") pursuant to this certificate (the "Notes") as provided in
the Indenture, dated as of October 15, 2004 (as amended and supplemented, the
"Indenture"), in respect of such issue. This is to certify that (i) we have
received a certificate or certificates, in writing or by tested telex, with
respect to each of the persons appearing in our records as being entitled to a
beneficial interest in the Submitted Portion and with respect to such person's
beneficial interest either (a) from such person, substantially in the form of
Exhibit [o]-[o] to the Indenture Supplement, or (b) from __________, _____,
substantially in the form of Exhibit [o]-[o] to the Indenture Supplement, and
(ii) the Submitted Portion includes no part of the Temporary Global Note
excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect
that the statements made by them with respect to any part of the Submitted
Portion are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings.
Dated: __________, _____,
[as operator of the Euroclear System]
[Clearstream, Luxembourg]
By__________________________________
Exhibit B-2
FORM OF CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY [o] WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED
INSTITUTIONAL BUYERS
CHASE ISSUANCE TRUST,
Series [o], Class [o] Notes
In connection with the initial issuance and placement of the Series
[o], Class [o] Notes (the "Notes"), an institutional investor in the United
States (an "institutional investor") is purchasing [U.S.$/(pound)/(U)/SF]
aggregate principal amount of the Notes hold in our account at [ ], as operator
of the Euroclear System] [Clearstream, Luxembourg] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate or
a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered by this
certificate.]
The Definitive Notes in respect of this certificate are to be issued
in registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF] and
such Definitive Notes (and, unless the Indenture or Terms Document relating to
the Notes otherwise provides, any Notes issued in exchange or substitution for
or on registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED
OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (EACH
AS DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF
SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN. THIS NOTE CANNOT BE EXCHANGED FOR A
BEARER NOTE."
Dated: __________, _____,
[ ]
By:_____________________
Authorized Officer
Exhibit B-3
FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER OF NOTES,
OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
CHASE ISSUANCE TRUST,
Series [o], Class [o] Notes
This is to certify that as of the date hereof and except as provided
in the third paragraph hereof, the Series [o], Class [o] Notes held by you for
our account (the "Notes") (i) are owned by a person that is a United States
person, or (ii) are owned by a United States person that is (A) the foreign
branch of a United States financial institution (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) (a "financial institution") purchasing
for its own account or for resale, or (B) a United States person who acquired
the Notes through the foreign branch of a financial institution and who holds
the Notes through the financial institution on the date hereof (and in either
case (A) or (B), the financial institution hereby agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by a
financial institution for purposes of resale during the Restricted Period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). In
addition, financial institutions described in clause (iii) of the preceding
sentence (whether or not also described in clause (i) or (ii)) certify that
they have not acquired the Notes for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
We undertake to advise you by tested telex if the above statement as
to beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to [U.S.$/(pound)/(U)/SF]
principal amount of Notes held by you for our account, as to which we are not
yet able to certify beneficial ownership. We understand that delivery of
Definitive Notes in such principal amount cannot be made until we are able to
so certify.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings. As used herein, "United States" means the United States of
America, including the States and the District of Columbia, its territories,
its possessions and other areas subject to its jurisdiction; and "United States
person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States, or any political subdivision thereof, or an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
Dated: __________, _____
By:_______________________
Name:
Title:
As, or as agent for, the beneficial owner(s) of the interest in the
Notes to which this certificate relates.
