Exhibit 4.1
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INDENTURE
dated as of September 26, 2000
between
CITIBANK CREDIT CARD ISSUANCE TRUST,
as Issuer,
and
BANKERS TRUST COMPANY,
as Trustee
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RECITALS OF THE ISSUER.........................................................................................1
GRANTING CLAUSE................................................................................................1
AGREEMENTS OF THE PARTIES......................................................................................2
LIMITED RECOURSE...............................................................................................3
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions............................................................................3
SECTION 102. Compliance Certificates and Opinions..................................................26
SECTION 103. Form of Documents Delivered to Trustee................................................27
SECTION 104. Acts of Noteholders...................................................................27
SECTION 105. Notices, etc., to Trustee and Issuer..................................................28
SECTION 106. Notices to Noteholders; Waiver........................................................28
SECTION 107. Conflict with Trust Indenture Act.....................................................29
SECTION 108. Effect of Headings and Table of Contents..............................................29
SECTION 109. Successors and Assigns................................................................29
SECTION 110. Separability Clause...................................................................29
SECTION 111. Benefits of Indenture.................................................................30
SECTION 112. Governing Law.........................................................................30
SECTION 113. Counterparts..........................................................................30
SECTION 114. Interest Period Convention............................................................30
SECTION 115. Indenture Referred to in the Trust Agreement..........................................30
ARTICLE II
Note Forms
SECTION 201. Forms Generally.......................................................................30
SECTION 202. Forms of Notes........................................................................30
SECTION 203. Form of Trustee's Certificate of Authentication.......................................31
SECTION 204. Notes Issuable in the Form of a Global Note...........................................31
SECTION 205. Temporary Global Notes and Permanent Global Notes.....................................33
SECTION 206. Beneficial Ownership of Global Notes..................................................35
SECTION 207. Notices to Depository.................................................................35
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ARTICLE III
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The Notes
SECTION 301. General Title; General Limitations; Issuable in Series;
Terms of a Series, Class or Tranche...................................................35
SECTION 302. Denominations.........................................................................39
SECTION 303. Execution, Authentication and Delivery and Dating.....................................39
SECTION 304. Temporary Notes.......................................................................40
SECTION 305. Registration, Transfer and Exchange...................................................40
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes...........................................42
SECTION 307. Payment of Interest; Interest Rights Preserved........................................43
SECTION 308. Persons Deemed Owners.................................................................43
SECTION 309. Cancellation..........................................................................43
SECTION 310. Computation of Interest...............................................................44
SECTION 311. New Issuances of Notes................................................................44
SECTION 312. Specification of Required Subordinated Amount and other
Terms with Respect to each Class of a Multiple Issuance
Series................................................................................46
SECTION 313. Required Subordinated Amount Conditions to Issuance of Notes
of a Tranche of a Senior Class of a Multiple Issuance Series..........................47
ARTICLE IV
Accounts and Investments
SECTION 401. Collections...........................................................................49
SECTION 402. Accounts..............................................................................49
SECTION 403. Investment of Funds in the Accounts...................................................50
SECTION 404. Excess Funds in the Interest Funding sub-Accounts or
Principal Funding sub-Accounts........................................................52
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ARTICLE V
Allocations, Deposits and Payments
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SECTION 501. Allocations of Finance Charge Collections.............................................52
SECTION 502. Allocations of Principal Collections..................................................53
SECTION 503. Targeted Deposits of Finance Charge Collections to the
Interest Funding Account..............................................................54
SECTION 504. Payments Received from Derivative Counterparties for
Interest; Other Deposits to the Interest Funding Account..............................56
SECTION 505. Allocation of Deposits to Interest Funding sub-Accounts...............................57
SECTION 506. Deposit of Principal Funding sub-Account Earnings in
Interest Funding sub-Accounts; Principal Funding sub-Account
Earnings Shortfall....................................................................58
SECTION 507. Withdrawals from Interest Funding Account.............................................59
SECTION 508. Targeted Deposits of Principal Collections to the Principal
Funding Account.......................................................................60
SECTION 509. Payments Received from Derivative Counterparties for
Principal; Other Deposits to Principal Funding Accounts...............................62
SECTION 510. Reallocations of Funds on Deposit in the Principal Funding
sub-Accounts..........................................................................63
SECTION 511. Withdrawals from Principal Funding Account............................................65
SECTION 512. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to Benefit
Senior Classes of Single Issuance Series..............................................66
SECTION 513. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to Benefit
Senior Classes of Multiple Issuance Series............................................68
SECTION 514. Computation of Amount of Reallocations of Principal
Collections and Receivables Sales Proceeds Deposit Amounts
Taken from Subordinated Classes; Allocations of Reductions
to the Nominal Liquidation Amount of Subordinated Classes
from Reallocations of Principal Collections and Receivables
Sales Proceeds Deposit Amounts........................................................72
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SECTION 515. Limit on Repayments of Subordinated Classes of Single
Issuance Series.......................................................................74
SECTION 516. Limit on Repayments of Subordinated Classes of Multiple
Issuance Series.......................................................................75
SECTION 517. Limit on Repayments of all Tranches...................................................77
SECTION 518. Targeted Deposits to the Class C Reserve Account......................................77
SECTION 519. Withdrawals from the Class C Reserve Account..........................................78
SECTION 520. Reinvestment in the Collateral Certificate............................................79
SECTION 521. Final Payment.........................................................................79
SECTION 522. Timing of Deposits....................................................................79
SECTION 523. Sale of Receivables...................................................................80
SECTION 524. Netting of Deposits and Payments......................................................83
SECTION 525. Pro Rata Payments within a Tranche....................................................83
SECTION 526. Allocations of Reductions from Investor Charge-Offs to the
Nominal Liquidation Amount or Receivables Sales Proceeds
Amount of Subordinated Classes........................................................83
SECTION 527. Allocations of Reimbursements of Reductions in the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit
Deficits..............................................................................85
SECTION 528. Order of Giving Effect to Reductions and Reimbursements of
Nominal Liquidation Amount............................................................87
ARTICLE VI
Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or the Banks
SECTION 601. Satisfaction and Discharge of Indenture...............................................88
SECTION 602. Application of Trust Money............................................................89
SECTION 603. Cancellation of Notes Held by the Issuer or the Banks.................................89
ARTICLE VII
Remedies
SECTION 701. Events of Default.....................................................................89
SECTION 702. Acceleration of Maturity; Rescission and Annulment....................................90
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SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Trustee...............................................................................92
SECTION 704. Trustee May File Proofs of Claim......................................................92
SECTION 705. Trustee May Enforce Claims Without Possession of Notes................................93
SECTION 706. Application of Money Collected........................................................93
SECTION 707. Trustee May Elect to Hold the Collateral Certificate..................................94
SECTION 708. Sale of Receivables for Accelerated Notes.............................................94
SECTION 709. Noteholders Have the Right to Direct the Time, Method and
Place of Conducting Any Proceeding for Any Remedy Available
to the Trustee........................................................................94
SECTION 710. Limitation on Suits...................................................................94
SECTION 711. Unconditional Right of Noteholders to Receive Principal and
Interest; Limited Recourse............................................................95
SECTION 712. Restoration of Rights and Remedies....................................................95
SECTION 713. Rights and Remedies Cumulative........................................................95
SECTION 714. Delay or Omission Not Waiver..........................................................95
SECTION 715. Control by Noteholders................................................................96
SECTION 716. Waiver of Past Defaults...............................................................96
SECTION 717. Undertaking for Costs.................................................................96
SECTION 718. Waiver of Stay or Extension Laws......................................................97
ARTICLE VIII
The Trustee
SECTION 801. Certain Duties and Responsibilities...................................................97
SECTION 802. Notice of Defaults....................................................................98
SECTION 803. Certain Rights of Trustee.............................................................98
SECTION 804. Not Responsible for Recitals or Issuance of Notes.....................................99
SECTION 805. May Hold Notes.......................................................................100
SECTION 806. Money Held in Trust..................................................................100
SECTION 807. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity..........................................................100
SECTION 808. Disqualification; Conflicting Interests..............................................101
SECTION 809. Corporate Trustee Required; Eligibility..............................................101
SECTION 810. Resignation and Removal; Appointment of Successor....................................101
SECTION 811. Acceptance of Appointment by Successor...............................................103
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SECTION 812. Merger, Conversion, Consolidation or Succession to Business..........................103
SECTION 813. Preferential Collection of Claims Against Issuer.....................................104
SECTION 814. Appointment of Authenticating Agent..................................................104
ARTICLE IX
Noteholders' Meetings, Lists, Reports by Trustee,
Issuer and Managing Beneficiary
SECTION 901. Issuer To Furnish Trustee Names and Addresses of Noteholders.........................105
SECTION 902. Preservation of Information; Communications to Noteholders...........................106
SECTION 903. Reports by Trustee...................................................................107
SECTION 904. Meetings of Noteholders; Amendments and Waivers......................................108
SECTION 905. Reports by Issuer to the Commission..................................................108
SECTION 906. Reports by Trustee...................................................................109
SECTION 907. Monthly Issuer's Report..............................................................109
SECTION 908. Payment Request to Master Trust......................................................109
SECTION 909. Monthly Computation Statement........................................................109
ARTICLE X
Supplemental Indentures; Amendments to the Pooling and
Servicing Agreement and Amendments to the Trust Agreement
SECTION 1001. Supplemental Indentures Without Consent of Noteholders...............................110
SECTION 1002. Supplemental Indentures with Consent of Noteholders..................................111
SECTION 1003. Execution of Supplemental Indentures.................................................113
SECTION 1004. Effect of Supplemental Indentures....................................................113
SECTION 1005. Conformity with Trust Indenture Act..................................................113
SECTION 1006. Reference in Notes to Supplemental Indentures........................................113
SECTION 1007. Amendments to the Pooling and Servicing Agreement....................................113
SECTION 1008. Amendments to the Trust Agreement....................................................114
SECTION 1009. Notice...............................................................................114
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ARTICLE XI
Representations, Warranties and Covenants of Issuer
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SECTION 1101. Payment of Principal and Interest....................................................115
SECTION 1102. Maintenance of Office or Agency......................................................115
SECTION 1103. Money for Note Payments to be Held in Trust..........................................115
SECTION 1104. Statement as to Compliance...........................................................117
SECTION 1105. Legal Existence......................................................................117
SECTION 1106. Further Instruments and Acts.........................................................117
SECTION 1107. Compliance with Laws.................................................................117
SECTION 1108. Notice of Events of Default..........................................................117
SECTION 1109. Certain Negative Covenants...........................................................118
SECTION 1110. No Other Business....................................................................118
SECTION 1111. No Borrowing.........................................................................118
SECTION 1112. Excluded Series......................................................................118
SECTION 1113. Rule 144A Information................................................................118
ARTICLE XII
Early Redemption of Notes
SECTION 1201. Applicability of Article.............................................................119
SECTION 1202. Optional Repurchase. ................................................................120
SECTION 1203. Notice...............................................................................121
ARTICLE XIII
Collateral
SECTION 1301. Recording, Etc.......................................................................121
SECTION 1302. Trust Indenture Act Requirements.....................................................123
SECTION 1303. Suits To Protect the Collateral......................................................123
SECTION 1304. Purchaser Protected..................................................................123
SECTION 1305. Powers Exercisable by Receiver or Trustee............................................124
SECTION 1306. Determinations Relating to Collateral................................................124
SECTION 1307. Release of Collateral................................................................124
SECTION 1308. Certain Actions by Trustee...........................................................125
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SECTION 1309. Opinions as to Collateral............................................................125
SECTION 1310. Delegation of Duties.................................................................125
ARTICLE XIV
Miscellaneous
SECTION 1401. No Petition..........................................................................126
SECTION 1402. Trust Obligations....................................................................126
SECTION 1403. Limitations on Liability.............................................................126
SECTION 1404. Notes Treated as Debt................................................................126
SECTION 1405. Actions Taken by the Issuer..........................................................127
SECTION 1406. Derivative Counterparty as Third-Party Beneficiary...................................127
Annex I Threshold Conditions
Exhibit A Form of Payment Request
Exhibit B Form of Monthly Computation Statement
Exhibit C Form of Issuer's Report
Exhibit D Form of Investment Letter
Exhibit E-1 Form of Certificate of Foreign Clearing Agency
Exhibit E-2 Form of Alternate Certificate to be Delivered to Foreign Clearing Agency
Exhibit E-3 Form of Certificate to be Delivered to Foreign Clearing Agency
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THIS INDENTURE between CITIBANK CREDIT CARD ISSUANCE TRUST,
a statutory business trust organized under the laws of the State
of Delaware (the "Issuer"), and BANKERS TRUST COMPANY, a New York
banking corporation ( the "Trustee"), is made and entered into as
of September 26, 2000.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its notes to be issued in one or more fully
registered or bearer series, classes or tranches.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
To secure the Issuer's obligations under the Notes, the Issuer hereby
grants to (a) the Trustee, for the benefit and security of the Noteholders, (b)
each counterparty to a Derivative Agreement entered into in connection with the
issuance of a tranche of Notes that expressly states it is entitled to the
benefit of the Collateral, subject to Section 1303, and (c) the Trustee, in its
individual capacity (collectively, the "Secured Parties"), a Security Interest
in all of its right, title and interest, whether now owned or hereafter
acquired, in and to:
(i) the Collateral Certificate;
(ii) the Collection Account;
(iii) the Principal Funding Account;
(iv) the Interest Funding Account;
(v) the Class C Reserve Account;
(vi) any Supplemental Account;
(vii) all sub-accounts in the Principal Funding Account, the Interest
Funding Account, the Class C Reserve Account and any Supplemental Account;
(viii) all securities, securities entitlements, investments, money and
other property held in or through the Collection Account, the Principal Funding
Account, the Interest Funding Account, the Class C Reserve Account, any
Supplemental Account or any sub-account thereof;
(ix) all rights, benefits and powers under any Derivative Agreement
relating to any tranche of Notes;
(x) all interest, principal, payments or distributions of any nature or
type on any of the above;
(xi) all rights of enforcement against any of the representations and
warranties made by the Beneficiaries pursuant to Section 3.02 of the Trust
Agreement; and
(xii) all present and future claims, demands, causes of and choses in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing.
The collateral described above is referred to as the "Collateral". The
Security Interest in the Collateral is granted to secure the Notes (and, to the
extent specified in the applicable terms document or Derivative Agreement, the
obligations under any applicable Derivative Agreements) equally and ratably
without prejudice, priority or distinction, except as otherwise expressly
provided in this Indenture, or in the Issuer Certificate or supplemental
indenture which establishes any tranche of Notes, between any Note and any other
Note by reason of difference in time of issuance or otherwise, and to secure (i)
the payment of all amounts due on such Notes (and, to the extent so specified,
the obligations under any Derivative Agreements) in accordance with their terms,
(ii) the payment of all other sums payable under this Indenture and (iii)
compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Trustee acknowledges the grant of such Security Interest, and accepts
the Collateral in trust hereunder in accordance with the provisions hereof and
agrees to perform the duties herein to the end that the interests of the
Noteholders may be adequately and effectively protected.
Particular Notes and Derivative Agreements will benefit from the Security
Interest to the extent (and only to the extent) proceeds and distributions on
the Collateral are allocated for their benefit pursuant to this Indenture and
the applicable terms document.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Notes by the
Holders thereof, it is mutually covenanted and agreed as follows, for the equal
and proportionate benefit of all Holders of the Notes or of a series, class or
tranche thereof, as the case may be:
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LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and
other amounts on the Notes and to make payments on Derivative Agreements is
limited in recourse as set forth in Section 711.
ARTICLE I
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. For all purposes of this Indenture and of any
supplemental indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act or in the
Series 2000 Supplement, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Indenture to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this Indenture as originally executed. The words
"herein", "hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(5) "including" and words of similar import will be deemed to be
followed by "without limitation".
"Absolute Ownership" means, with respect to any Receivables, an absolute
fee interest in specific Receivables, whether or not the Servicer of the Master
Trust acts as servicer with respect to such Receivables.
"Accounts" means, collectively, the Collection Account, the Interest
Funding Account, the Principal Funding Account, the Class C Reserve Account, and
any Supplemental Account.
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"Act", when used with respect to any Noteholder, is defined in Section
104(a).
"action", when used with respect to any Noteholder, is defined in Section
104(a).
"Adjusted Outstanding Dollar Principal Amount" means at any time with
respect to any tranche of Notes, the Outstanding Dollar Principal Amount of all
Outstanding Notes of such tranche at such time, less any funds on deposit in the
Principal Funding sub-Account for such tranche at such time and not yet paid to
the Holders of the Notes of such tranche.
"Adjustment Ratio" means, with respect to any tranche of Notes as of any
date, the ratio, expressed as a decimal, of the Adjusted Outstanding Dollar
Principal Amount of such tranche as of such date, to the Outstanding Dollar
Principal Amount of such tranche as of such date.
"Adverse Effect" means, whenever used in this Indenture with respect to any
tranche of Notes with respect to any action, that such action will (a) at the
time of its occurrence or at any future date result in the occurrence of an
Early Redemption Event or Event of Default, (b) adversely affect the amount of
funds available to be distributed to the Noteholders of any series pursuant to
this Indenture or the timing of such distributions, or (c) adversely affect the
Security Interest of the Secured Parties in the Collateral.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Allocable Miscellaneous Payments" is defined in the Series 2000
Supplement.
"Amortizing Undivided Interest" means an Undivided Interest with respect to
which the purchaser has the right to receive all collections with respect to any
Principal Receivables and Finance Charge Receivables, in each case in which such
purchaser has its Undivided Interest.
"applicable investment category" means with respect to any investment for
an Account relating to a tranche of Class A Notes, Class B Notes or Class C
Notes, the following ratings:
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Standard & Poor's Moody's Fitch
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Class A Notes A-1+ or AAA P-1 or Aaa F-1+ or AAA
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Class B Notes A or higher A2 or higher A or higher
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Class C Notes BBB or higher Baa2 or higher BBB or higher
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Notwithstanding the foregoing, if funds on deposit in an Account are for the
benefit of more than one class of Notes, the rating required for any investment
of those funds will be the rating applicable to the most senior class.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Notes under Section 814.
"Authorized Newspaper" means with respect to any tranche of Notes, in the
newspaper of record specified in the applicable terms document for that tranche,
or if and so long as Notes of that tranche are listed on any securities exchange
and that exchange so requires, in the newspaper of record required by the
applicable securities exchange, printed in any language specified in the
applicable terms document or satisfying the requirements of such exchange.
"Available Investor Principal Collections" is defined in the Series 2000
Supplement.
"Banks" means Citibank (South Dakota) and Citibank (Nevada) and includes
any Person that becomes both a Seller and a Beneficiary after the date of this
Indenture.
"Bearer Note" means a Note in bearer form.
"Beneficiaries" is defined in the Trust Agreement.
"Business Day" unless otherwise specified in the terms document for any
tranche of Notes, means any day other than (a) a Saturday or Sunday or (b) any
other day on which national banking associations or state banking institutions
in New York, New York, South Dakota, or Las Vegas, Nevada, or any other state in
which the principal executive offices of any Additional Seller (as defined in
the Pooling and Servicing Agreement) are located, are authorized or obligated by
law, executive order or governmental decree to be closed.
"Citibank" means Citibank, N.A.
"Citibank (Nevada)" means Citibank (Nevada), National Association.
"Citibank (South Dakota)" means Citibank (South Dakota), N.A.
"class" means, with respect to any Note, the class specified in the
applicable terms document. Notes of a single class of a series will rank equally
with respect to payment of principal and interest, but, in the case of a
Multiple Issuance Series, may differ with respect to interest rates, maturity or
other terms.
"Class A Note" means a Note specified in the applicable terms document as
belonging to Class A.
"Class A Required Subordinated Amount" means, with respect to any tranche
of Class A Notes of a Multiple Issuance Series, a Dollar amount of Class B Notes
or Class C Notes, as the
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case may be, as specified in Section 312(a) or in the applicable terms document
for such tranche of Class A Notes, or as changed from time to time pursuant to
Section 312(b).
"Class A Usage of Class B Required Subordinated Amount" is defined in
Section 513(b).
"Class A Usage of Class C Required Subordinated Amount" is defined in
Section 513(a).
"Class B Note" means a Note specified in the applicable terms document as
belonging to Class B.
"Class B Required Subordinated Amount" means, with respect to any tranche
of Class B Notes of a Multiple Issuance Series, a Dollar amount of Class C Notes
as specified in Section 312(a) or in the applicable terms document for such
tranche of Class B Notes, or as changed from time to time pursuant to Section
312(b).
"Class B Usage of Class C Required Subordinated Amount" is defined in
Section 513(c).
"Class C Note" means a Note specified in the applicable terms document as
belonging to Class C.
"Class C Reserve Account" means the trust account designated as such and
established pursuant to Section 402(a).
"Collateral" is defined in the Granting Clause.
"Collateral Certificate" means the Series 2000 Certificate, issued pursuant
to the Pooling and Servicing Agreement and the Series 2000 Supplement, as
amended, supplemented, restated or otherwise modified from time to time.
"Collection Account" is defined in Section 402(a).
"Collections" is defined in Section 401.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Controlled Accumulation Amount" means, with respect to any tranche of
Notes, the amount specified in the applicable terms document for computing the
deposits targeted by Section 508(b).
"Conversion Date" is defined in Section 523(d)(ii).
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"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business will
be principally administered, which office at the date hereof is located at 0
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency
Services, except that with respect to the presentation of Notes to the Trustee
for payment or for registration of transfer and exchange, such term means the
office or the agency of the Trustee in said city at which at any particular time
its corporate agency business will be conducted, which office at the date hereof
is located at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Defaulted Amount" is defined in the Pooling and Servicing Agreement.
"Depository" means a U.S. Depository or a Foreign Depository, as the case
may be.
"Derivative Agreement" means any currency, interest rate or other swap,
cap, collar, guaranteed investment contract or other derivative agreement.
"Derivative Counterparty" means any party to any Derivative Agreement other
than the Issuer or the Trustee.
"Discount Note" means a Note that provides for an amount less than the
stated principal amount thereof to be due and payable upon the occurrence of an
Early Redemption Event or other optional or mandatory redemption or the
occurrence of an Event of Default and the acceleration of such Note, in each
case before the Expected Principal Payment Date of the applicable Note.
"Dollar" means (a) United States dollars, or (b) denominated in United
States dollars.
"Due Period" is defined in the Pooling and Servicing Agreement.
"Early Redemption Event" is defined in Section 1201.
"Effective Date" means the date on which this Indenture is executed and
delivered by the parties hereto.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee for
funds deposited in such account, so long as any of the securities of such
depository institution will have a credit rating from each Rating Agency in one
of its generic credit rating categories which signifies investment grade.
"Eligible Institution" means a depository institution organized under the
laws of the United States of America or any one of the states thereof, including
the District of Columbia (or any domestic branch of a foreign bank), which at
all times has (a)(i) a long-term unsecured debt
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rating of A2 or better by Moody's and (ii) a certificate of deposit rating of
P-1 by Moody's and (b)(i) in the case of the Collection Account, if such
depository institution is an Affiliate of Citigroup Inc., a certificate of
deposit rating of A-1 or better by Standard & Poor's or (ii) for any other
depository institution (or for any Affiliate of Citigroup Inc., in the case of
any Account other than the Collection Account), either (x) a long-term unsecured
debt rating of AAA by Standard & Poor's or (y) a certificate of deposit rating
of A-1+ by Standard & Poor's. If so qualified, the Trustee or the Managing
Beneficiary may be considered an Eligible Institution for the purposes of this
definition.
"Eligible Investments" means book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit (having
original maturities of no more than 365 days) of depository institutions or
trust companies incorporated under the laws of the United States of America
or any state thereof (or domestic branches of foreign banks) and subject to
supervision and examination by federal or state banking or depository
institution authorities; provided that at the time of the Issuer's
investment or contractual commitment to invest therein, the short-term debt
rating of such depository institution or trust company will be in the
applicable investment category of each Rating Agency;
(c) commercial paper (having remaining maturities of no more than 30
days) having, at the time of the Issuer's investment or contractual
commitment to invest therein, a rating from each Rating Agency in its
applicable investment category;
(d) investments in money market funds rated in the applicable
investment category by each Rating Agency or otherwise approved in writing
by each Rating Agency;
(e) demand deposits, time deposits and certificates of deposit which
are fully insured by the FDIC;
(f) notes or bankers' acceptances (having original maturities of no
more than 365 days) issued by any depository institution or trust company
referred to in (b) above;
(g) time deposits (having maturities of no more than 30 days), other
than as referred to in clause (e) above, with a Person the commercial paper
of which has a credit rating from each Rating Agency in its applicable
investment category or notes which are payable on demand issued by
Citigroup Inc. or its Affiliates; provided that such notes will constitute
Eligible Investments only for so long as the commercial paper of Citigroup
Inc. or such Affiliate, as the case may be, has a credit rating from each
Rating Agency in its applicable investment category; or
8
(h) any other investments approved in writing by each Rating Agency.
The Issuer may, but is not required to, purchase Eligible Investments from
a registered broker-dealer which is an Affiliate of the Trustee, Citibank (South
Dakota), Citibank (Nevada) and/or Citigroup Inc.
"Entity" means any Person other than an individual or government (including
any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" is defined in Section 701.
"Exchange Date" means, with respect to any tranche of Notes, the latest of:
(a) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in
registered form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in bearer
form, the date of presentation of certification of non-United States
beneficial ownership (as described in Section 205); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a
Permanent Global Note is permitted by applicable law.
"Excluded Master Trust Series" means any series or portion of a series of
Investor Certificates under the Pooling and Servicing Agreement which is by its
terms an Excluded Series or the excluded portion of a series that is partially
an Excluded Series.
"Expected Principal Payment Date" means, with respect to any tranche of
Notes, the date specified as such in the applicable terms document.
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code, as
amended from time to time.
"Finance Charge Collections" means the amount of Investor Finance Charge
Collections which are payable to the Issuer pursuant to the Series 2000
Supplement, including pursuant to Sections 4.02(a)(i), 4.02(a)(ii)(B) and
4.02(a)(iii) thereof.
"Finance Charge Receivables" is defined in the Pooling and Servicing
Agreement.
9
"Fitch" means Fitch, Inc., or any successor thereto.
"foreign currency" means (a) a currency other than Dollars, or (b)
denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the applicable terms
document, in its capacity as depository for the accounts of any clearing
agencies located outside the United States.
"Global Note" means Notes issued pursuant to Section 204.
"group" means any one or more series of Notes which are specified as
belonging to a common group in the applicable terms document.
"Holder", when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally executed
or as amended, supplemented, restated or otherwise modified from time to time by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and will include the terms of particular series,
classes or tranches of Notes created as contemplated by Section 301.
"Initial Dollar Principal Amount" means (a) unless otherwise specified in
the applicable terms document, with respect to tranches of Dollar Interest-
bearing Notes, the aggregate initial principal amount of the Outstanding Notes
of such tranche, and (b) with respect to tranches of Discount Notes and foreign
currency Notes, the amount specified in the applicable terms document as the
Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at a stated or
computed rate on the principal amount thereof. A Note may be both an Interest-
bearing Note and a Discount Note.
"Interest Deposit Date" means the respective dates specified for deposits
into the Interest Funding sub-Accounts in Section 503.
"Interest Funding Account" means the trust account designated as such and
established pursuant to Section 402(a).
"Interest Payment Date" means, with respect to any tranche of Notes, the
Scheduled Interest Payment Date (or if such day is not a Business Day, the next
following Business Day) or upon the acceleration of a tranche of Notes following
an Event of Default or upon the occurrence of an Early Redemption Event, or
other optional or mandatory redemption of that tranche of Notes, each Monthly
Principal Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time.
10
"Invested Amount" means (a) with respect to the Collateral Certificate, the
Series 2000 Invested Amount as defined in the Series 2000 Supplement, and (b)
with respect to any other Investor Certificate, as defined in the supplement to
the Pooling and Servicing Agreement creating such Investor Certificate.
"Invested Amount Deficit" means the Series 2000 Invested Amount Deficit, as
defined in the Series 2000 Supplement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time.
"Investor Certificate" is defined in the Pooling and Servicing Agreement.
"Investor Charge-Offs" is defined in the Series 2000 Supplement.
"Investor Finance Charge Collections" is defined in the Series 2000
Supplement.
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory of the Issuer
Trustee, or (b) the chairman or vice-chairman of the board of directors,
chairman or vice-chairman of the executive committee of the board of directors,
the president, any vice-president, the secretary, any assistant secretary, the
treasurer, or any assistant treasurer, in each case of the Managing Beneficiary,
or any other person who is authorized by the Managing Beneficiary to act on
behalf of the Issuer.
"Issuer Certificate" means a written request, order, consent or certificate
signed in the name of an Issuer Authorized Officer, or the Issuer by an Issuer
Authorized Officer and, in each case, delivered to the Trustee. Wherever this
Indenture requires that an Issuer Certificate be signed also by an accountant or
other expert, such accountant or other expert (except as otherwise expressly
provided in this Indenture) may be in the employ of the Managing Beneficiary.
"Issuer's Report" means a report substantially in the form of Exhibit C, or
such other form as the Issuer may determine.
"Issuer Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that for Federal and Delaware income and (if applicable)
franchise tax purposes (a) such action will not adversely affect the
characterization of any Outstanding series, class or tranche of Notes as debt,
(b) such action will not cause a taxable event to Holders of any such Notes, (c)
the Issuer will not be an association (or publicly traded partnership) taxable
as a corporation following such action, and (d) where such action is the
issuance of a series, class or tranche of Notes, following such action such
series, class or tranche of Notes will be properly characterized as debt.
11
"Issuer Trustee" means The Bank of New York (Delaware) not in its
individual capacity, but solely in its capacity as trustee of the Issuer, and
each of its successors and assigns.
"Legal Maturity Date", with respect to a tranche of Notes, means the date
specified in the terms document for such tranche of Notes as the fixed date on
which the principal of such tranche of Notes is due and payable.
"Majority Holders" means with respect to any group, series, class or
tranche of Notes or all Outstanding Notes, the Holders of a majority in
Outstanding Dollar Principal Amount of the Outstanding Notes of that group,
series, class or tranche or of all Outstanding Notes, as the case may be.
"Manager" means the lead manager, manager or co-manager or person
performing a similar function with respect to an offering of Permanent Global
Notes.
"Managing Beneficiary" is defined in the Trust Agreement.
"Master Trust" means Citibank Credit Card Master Trust I, established
pursuant to the Pooling and Servicing Agreement.
"Master Trust Trustee" means the "Trustee" as defined in the Pooling and
Servicing Agreement.
"Master Trust Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that, for Federal and South Dakota (and any other state
where substantial servicing activities in respect of credit card accounts are
conducted by any Additional Seller, as defined in the Pooling and Servicing
Agreement, or the Banks, if there is a substantial change from present servicing
activities) income and (if applicable) franchise tax purposes, (a) such action
will not adversely affect the characterization as debt of the Investor
Certificates, as defined in the Pooling and Servicing Agreement, of any
outstanding series or class under the Master Trust that was characterized as
debt at the time of its issuance, (b) such action will not cause a taxable event
to any Investor Certificateholder and (c) following such action the Master Trust
will not be treated as an association (or publicly traded partnership) taxable
as a corporation.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"Monthly Computation Statement" means a statement substantially in the form
of Exhibit B, or such other form as the Issuer may determine.
"Monthly Interest Date" means, with respect to any tranche of Notes:
(a) for any month in which a Scheduled Interest Payment Date for such
tranche occurs, the corresponding Interest Payment Date, or as otherwise
specified in the applicable terms document for such tranche of Notes, and
12
(b) for any month in which no Scheduled Interest Payment Date for such
tranche occurs, the date in such month corresponding numerically to the
next Scheduled Interest Payment Date for such tranche of Notes, or as
otherwise specified in the applicable terms document for such tranche of
Notes; provided, however, that
(i) if there is no numerically corresponding day in such month,
then the Monthly Interest Date will be the last Business Day of such
month, and
(ii) if such numerically corresponding day is not a Business Day,
the Monthly Interest Date will be the next following Business Day
(unless such Business Day would fall in the following month in which
case the Monthly Interest Date will be the last Business Day of such
earlier month).
"monthly period" is defined in Section 506.
"Monthly Principal Date" means respect to any tranche of Notes:
(a) for the month in which the Expected Principal Payment Date for
such tranche occurs, the Expected Principal Payment Date (or if such day is
not a Business Day, the next following Business Day), or as otherwise
specified in the applicable terms document for such tranche of Notes, and
(b) for any month in which no Expected Principal Payment Date for such
tranche occurs, the date in such month corresponding numerically to the
Expected Principal Payment Date for such tranche of Notes, or as otherwise
specified in the applicable terms document for such tranche of Notes;
provided, however, that
(i) if there is no numerically corresponding day in such month,
then the Monthly Principal Date will be the last Business Day of such
month, and
(ii) if such numerically corresponding day is not a Business Day,
the Monthly Principal Date will be the next following Business Day
(unless such Business Day would fall in the following month in which
case the Monthly Principal Date will be the last Business Day of such
earlier month).
"Multiple Issuance Series" means any series of Notes other than a Single
Issuance Series.
"Nominal Liquidation Amount" means, with respect to any tranche of Notes,
an amount determined as follows:
(a) As of the date of issuance of such tranche of Notes, the Nominal
Liquidation Amount will be the Initial Dollar Principal Amount of such
tranche of Notes.
(b) As of each subsequent date of determination, the Nominal
Liquidation Amount will be the sum of:
13
(i) the Nominal Liquidation Amount of such tranche immediately
after the prior date of determination;
plus
----
(ii) with respect to any tranche of Discount Notes, the amount of
any accretions of principal on that tranche paid to the Master Trust
for investment in the Invested Amount of the Collateral Certificate
pursuant to Section 520(a) since the prior date of determination;
plus
----
(iii) such tranche's allocable share of Principal Collections
allocated to such tranche pursuant to Section 502(c) for investment in
the Invested Amount of the Collateral Certificate pursuant to Section
520(c) since the prior date of determination;
plus
----
(iv) such tranche's allocable share of all reimbursements of
Invested Amount Deficits or its Nominal Liquidation Amount Deficit
since the prior date of determination which are retained by the Master
Trust pursuant to Section 527(e)(i) or paid to the Master Trust
pursuant to Section 520(b) or 527(f)(i), in each case for investment
in the Invested Amount of the Collateral Certificate;
minus
-----
(v) such tranche's allocable share of all reallocations of
Principal Collections pursuant to Section 502(a) since the prior date
of determination, determined as set forth in Section 514;
minus
-----
(vi) such tranche's allocable share of all reductions in the
Invested Amount of the Collateral Certificate resulting from an
allocation of Investor Charge-Offs since the prior date of
determination, determined as set forth in Section 526;
minus
-----
(vii) the amount on deposit in the applicable Principal Funding
sub-Account for such tranche (after giving effect to any deposits,
allocations, reallocations or withdrawals to be made on that day);
minus
-----
14
(viii) the aggregate amount withdrawn from the applicable
Principal Funding sub-Account for such tranche pursuant to Section
511(a), (b) or (c) since the prior date of determination;
provided; however, that (1) the Nominal Liquidation Amount of a tranche of
Notes may never be less than zero, (2) the Nominal Liquidation Amount of
any tranche of Notes may never be greater than the Adjusted Outstanding
Dollar Principal Amount of such tranche and (3) the Nominal Liquidation
Amount of any tranche of RSP Notes will be zero.
It is the intention of the Issuer that the sum of the Nominal Liquidation
Amounts of all tranches of Notes will at all times be equal to the Invested
Amount of the Collateral Certificate.
The Nominal Liquidation Amount for a series of Notes will be the sum of the
Nominal Liquidation Amounts of all of the tranches of Notes of that series.
"Nominal Liquidation Amount Deficit" means, (a) with respect to any tranche
of Notes (other than any RSP Notes), the excess of the Adjusted Outstanding
Dollar Principal Amount of that tranche over the Nominal Liquidation Amount of
that tranche, and (b) with respect to any tranche of RSP Notes, zero.
"non-Performing", with respect to a Derivative Agreement, means not
Performing.
"Note" or "Notes" means any note or notes, of any series, class or tranche
authenticated and delivered from time to time under this Indenture.
"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.
"Note Owner" means the beneficial owner of an interest in a Global Note.
"Note Register" is defined in Section 305.
"Note Registrar" means the Person who keeps the Note Register specified in
Section 305.
"Opinion of Counsel" means a written opinion of counsel acceptable to the
Trustee, who may, without limitation, and except as otherwise expressly provided
in this Indenture, be an employee of or counsel to the Issuer, the Managing
Beneficiary or any of their Affiliates.
"Outstanding", when used with respect to a Note or with respect to Notes of
any group, series, class or tranche means, as of the date of determination, all
such Notes theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation, or canceled by the Issuer, the Banks or any
Affiliate thereof pursuant to Section 309;
15
(b) any Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
in trust for the Holders of such Notes; provided that, if such Notes are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(c) any Notes which are deemed to have been paid in full pursuant to
Section 521; and
(d) any such Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture, or which
will have been paid pursuant to the terms of Section 306 (except with
respect to any such Note as to which proof satisfactory to the Trustee is
presented that such Note is held by a person in whose hands such Note is a
legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations, reallocations
or payments to be made, unless the context clearly requires otherwise,
references to "Notes" will be deemed to be references to "Outstanding Notes". In
determining whether the Holders of the requisite principal amount of such Notes
Outstanding have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, and for purposes of Section 904, Notes beneficially
owned by the Issuer, the Banks or any other obligor upon the Notes or any
Affiliate of the Issuer, the Banks or such other obligor will be disregarded and
deemed not to be Outstanding. In determining whether the Trustee will be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which the Trustee knows to be owned by the
Issuer, the Banks or any other obligor upon the Notes or any Affiliate of the
Issuer, the Banks or such other obligor will be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee creates to the satisfaction of the Trustee the pledgee's right to act as
owner with respect to such Notes and that the pledgee is not the Issuer, the
Banks or any other obligor upon the Notes or any Affiliate of the Issuer, the
Banks or such other obligor.
"Outstanding Dollar Principal Amount" means at any time,
(a) with respect to any tranche of non-Discount Notes, the aggregate
Initial Dollar Principal Amount of the Outstanding Notes of such tranche at
such time, less the amount of any withdrawals from the Principal Funding
sub-Account for such tranche of Notes for payment to the Holders of such
tranche or the applicable Derivative Counterparty pursuant to Section
511(a), (b) or (c), and
(b) with respect to any tranche of Discount Notes, an amount of the
Outstanding Notes of such tranche calculated by reference to the applicable
formula set forth in the applicable terms document, taking into account the
amount and timing of payments made to the Holders of such tranche or to the
applicable Derivative Counterparty pursuant to Section 511(a), (b) or (c).
16
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer.
"Payment Date" means, with respect to any tranche of Notes, the applicable
Principal Payment Date or Interest Payment Date.
"Payment Request" means a request substantially in the form of Exhibit A,
or such other form as the Issuer may determine.
"Performing" means, with respect to any Derivative Agreement, no payment
default or repudiation of performance by a Derivative Counterparty has occurred,
and such Derivative Agreement has not been terminated.
"Permanent Global Note" is defined in Section 205.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means with respect to any tranche of Notes issued
hereunder the city or political subdivision so designated with respect to such
tranche of Notes in accordance with the provisions of Section 301.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement, dated as of May 29, 1991, among Citibank (South Dakota) as Seller and
Servicer, Citibank (Nevada) as Seller, and Bankers Trust Company as Trustee, as
amended, supplemented, restated or otherwise modified from time to time.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a lost, destroyed or
stolen Note will be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
"Prefunding Excess Amount" means, with respect to any senior class of Notes
of a series for any Due Period, after giving effect to all issuances,
allocations, deposits and payments with respect to that Due Period, the
aggregate amounts on deposit in the Principal Funding sub-Accounts of the Notes
of that class of that series that are in excess of the aggregate amount targeted
to be on deposit is those Principal Funding sub-Accounts pursuant to Section
508.
"Prefunding Target Amount" with respect to all tranches of Class A Notes of
a series means the greater of the amount computed under clause (a) or (b) for
the applicable Due Period, and with respect to all tranches of Class B Notes of
a series means the amount computed under clause (c):
17
(a) The Prefunding Target Amount for tranches of Class A Notes of a
series with respect to Class B Notes of that series as of the end of any
Due Period is equal to the following amount (but not less than zero):
the aggregate the sum of the amounts in clauses (i) through the aggregate amount on
Outstanding Dollar (iii) of this clause (a) deposit in the Principal
Principal Amount of ---------------------------------------------- Funding sub-Accounts for all
Class A Notes of that x 1 - the aggregate amount of the Class A Required - Outstanding tranches of
series as of the end Subordinated Amount of Class B Notes for all Class A Notes of that series
of that Due Period tranches of Class A Notes of that series which as of the end of that Due
are Outstanding as of the end of that Due Period
Period
(i) the aggregate Nominal Liquidation Amount of all tranches of
Outstanding Class B Notes of that series, other than tranches which
have (A) had Early Redemption Events or other mandatory or optional
redemption events in which such tranches are to be redeemed in full,
(B) had Events of Default, or (C) reached their Expected Principal
Payment Date, in each case, in or with respect to that Due Period or
earlier Due Periods;
plus
----
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class B Notes of that
series;
plus
----
(iii) the aggregate amount of all Class A Usage of Class B
Required Subordinated Amount by any Outstanding tranche of Class A
Notes of that series.
(b) The Prefunding Target Amount for tranches of Class A Notes of a
series with respect to Class C Notes of that series as of the end of any
Due Period is equal to the following amount (but not less than zero):
18
the aggregate the sum of the amounts in clauses the aggregate
Outstanding (i) through (iii) of this clause (b) amount on deposit
Dollar Principal --------------------------------------- in the Principal
Amount of Class x 1 - the aggregate amount of the Class _ Funding sub-Accounts
A Notes of that A Required Subordinated Amount for all Outstanding
series as of the of Class C Notes for all tranches of tranches of Class
end of that Due Class A Notes of that series which A Notes of that
Period are Outstanding as of the end of series as of the end
that Due Period of that Due Period
(i) the aggregate Nominal Liquidation Amount of all tranches of
Outstanding Class C Notes of that series, other than tranches which
have (A) had Early Redemption Events or other mandatory or optional
redemption events in which such tranches are to be redeemed in full,
(B) had Events of Default, or (C) reached their Expected Principal
Payment Date, in each case, in or with respect to that Due Period or
earlier Due Periods;
plus
----
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class C Notes of that
series;
plus
----
(iii) the aggregate amount of all Class A Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class A
Notes of that series.
(c) The Prefunding Target Amount for tranches of Class B Notes of a
series with respect to Class C Notes of that series as of the end of any
Due Period is equal to the following amount (but not less than zero):
19
the aggregate the sum of the amounts in clauses the aggregate
Outstanding (i) through (iii) of this clause (c) amount on deposit
Dollar Principal --------------------------------------- in the Principal
Amount of Class x 1 - the aggregate amount of the Class _ Funding sub-Accounts
B Notes of that B Required Subordinated Amount for all Outstanding
series as of the of Class C Notes for all tranches of tranches of Class
end of that Due Class B Notes of that series which B Notes of that
Period are Outstanding as of the end of series as of the end
that Due Period of that Due Period
(i) the aggregate Nominal Liquidation Amount of all tranches of
Outstanding Class C Notes of that series, other than tranches which
have (A) had Early Redemption Events or other mandatory or optional
redemption events in which such tranches are to be redeemed in full,
(B) had Events of Default, or (C) reached their Expected Principal
Payment Date, in each case, in or with respect to that Due Period or
earlier Due Periods;
plus
----
(ii) the aggregate amount on deposit in the Principal Funding
sub-Accounts for all Outstanding tranches of Class C Notes of that
series;
plus
----
(iii) the aggregate amount of all Class B Usage of Class C
Required Subordinated Amount by any Outstanding tranche of Class B
Notes of that series.
"Principal Collections" means the amount of Available Investor Principal
Collections which are payable to the Issuer pursuant to the Series 2000
Supplement, including pursuant to Section 4.02 (b)(ii) or Section 4.02(c)(ii)
thereof. "Principal Collections" does not include Receivables Sales Proceeds.
"Principal Deposit Date" means the respective dates specified for deposits
into the Principal Funding sub-Accounts in Section 508.
"Principal Funding Account" means the trust account designated as such and
established pursuant to Section 402(a).
"Principal Funding sub-Account Earnings" means, with respect to any
Principal Funding sub-Account for any period, the net amount of income and other
earnings on the amounts on
20
deposit in the Principal Funding sub-Account earned by the funds on deposit in
such Principal Funding sub-Account for such period.
"Principal Funding sub-Account Earnings Shortfall" means, for any period,
(a) the Principal Funding sub-Account Earnings Target for such period
minus
-----
(b) the Principal Funding sub-Account Earnings for such period.
"Principal Funding sub-Account Earnings Target" means, for any period, with
respect to any amount on deposit in a Principal Funding sub-Account for a
tranche of Notes (other than a tranche of RSP Notes), the Dollar amount of
interest that would have accrued on such deposit if it had borne interest at the
following rates:
(a) in the case of a tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest (or any Derivative Agreement, such as an
interest rate cap, that by its terms only covers a portion of the interest
on such tranche of Notes) or a non-Performing Derivative Agreement for
interest, at the rate of interest applicable to that tranche including, if
the Derivative Agreement is an interest rate cap, the uncapped portion of
the rate of interest applicable to that tranche;
(b) in the case of a tranche of Discount Notes, at the rate of
accretion (converted to an accrual rate) of that tranche;
(c) in the case of a tranche of Notes with a Performing Derivative
Agreement for interest, at the rate of interest payable by the Issuer to
the applicable Derivative Counterparty; and
(d) in the case of a tranche of foreign currency Notes with a non-
Performing Derivative Agreement, at the rate of interest that would have
been payable by the Issuer to the applicable Derivative Counterparty if
such Derivative Agreement had been Performing.
"Principal Payment Date" means, with respect to any tranche of Notes, the
Expected Principal Payment Date, or upon the acceleration of a tranche of Notes
following an Event of Default or upon the occurrence of an Early Redemption
Event, or other optional or mandatory redemption of that tranche of Notes, each
Monthly Principal Date (or if any such day is not a Business Day, the next
following Business Day).
"Principal Receivables" is defined in the Pooling and Servicing Agreement.
"Rating Agency" means, with respect to any Outstanding series, class or
tranche of Notes, each statistical rating agency selected by the Issuer to rate
such Notes.
21
"Ratings Effect" means a reduction, qualification or withdrawal of any then
current rating of the Notes.
"Receivables" is defined in the Pooling and Servicing Agreement..
"Receivables Sales Proceeds" means, with respect to any tranche of Notes,
the proceeds of the sale of Receivables with respect to such tranche pursuant to
Section 523. "Receivables Sales Proceeds" do not constitute Principal
Collections.
"Receivables Sales Proceeds Deposit Deficit" means, on any date with
respect to any Outstanding tranche of RSP Notes, the amount by which the amount
of Receivables Sales Proceeds of that tranche exceeds the sum of (a) the
Receivables Sales Proceeds Deposit Amount for that tranche plus (b) the
aggregate amount of any withdrawals of Receivables Sales Proceeds made pursuant
to Section 511(a), (b) or (c).
"Receivables Sales Proceeds Deposit Amount" means, with respect to any
tranche of Notes that has received Receivables Sales Proceeds, the amount of
Receivables Sales Proceeds on deposit in the Principal Funding sub-Account for
such tranche.
"Record Date" for the interest or principal payable on any Note on any
applicable Payment Date means the last day of the month before the related
Payment Date, unless otherwise specified in the applicable terms document.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Subordinated Amount" means, with respect to any tranche of a
senior class of Notes of a Multiple Issuance Series, a Dollar amount of a
subordinated class of the same series, as specified in the applicable terms
document for such tranche of the senior class, or as changed from time to time
pursuant to Section 312(b).
"Required Surplus Finance Charge Amount" means, with respect to any Due
Period, an amount equal to one twelfth of the product of (a) the Invested Amount
of the Collateral Certificate as of the last day of the immediately preceding
Due Period, and (b) a decimal number to be set by the Issuer, which will
initially equal zero (and which will never be less than zero); provided,
however, that for purposes of the definition of "Adverse Effect", such decimal
number will at all times be deemed to be the decimal number as set by the Issuer
plus one-hundredth (0.01). The Issuer may, from time to time, change the decimal
number to be set for purposes of clause (b) upon written notice to the Trustee
and each Rating Agency, and, if such decimal number is to be increased, upon
delivery by the Issuer to the Trustee of an Issuer Certificate to the effect
that the Issuer reasonably believes that such increase will not have an Adverse
Effect and is not reasonably expected to have an Adverse Effect at any time in
the future.
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"Revolving Undivided Interest" means an Undivided Interest with respect to
which the purchaser has no right to receive collections with respect to any
Principal Receivables, but a right to receive all collections with respect to
any Finance Charge Receivables, in each case in which such purchaser has its
Undivided Interest.
"RSP Notes" means any Note that is part of a tranche of Notes that has
caused a sale of Receivables pursuant to Sections 523 and 708.
"Scheduled Interest Payment Date" means, with respect to any tranche of
Notes, the scheduled due date of any payment of interest on such Notes, as
specified in the applicable terms document, without regard to whether or not
such day is a Business Day.
"Secured Parties" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Security Interest" means the security interest granted pursuant to the
Granting Clause.
"Segregated Sellers' Interest" means, on any date, a portion of the
Sellers' Interest equal to the aggregate amount on deposit in the Principal
Funding Account for each tranche of Notes other than any tranche of RSP Notes.
"Sellers" means Citibank (Nevada) and Citibank (South Dakota) in their
capacities as Sellers under the Pooling and Servicing Agreement and any
Additional Sellers as defined in the Pooling and Servicing Agreement.
"senior class" means (a) with respect to Class B Notes of a series, Class A
Notes of that series and (b) with respect to Class C Notes of a series, Class A
Notes or Class B Notes of that series.
"series" means, with respect to any Note, the series specified in the
applicable terms document.
"Series 2000 Default Amount" is defined in the Series 2000 Supplement.
"Series 2000 Supplement" means the Series 2000 Supplement to the Pooling
and Servicing Agreement, dated as of September 26, 2000, as amended,
supplemented, restated or otherwise modified from time to time.
"Servicer" is defined in the Pooling and Servicing Agreement.
23
"Single Issuance Series" means any series of Notes that by the terms of the
applicable terms document does not permit the issuance of more than one tranche
of Notes in each class of Notes in such series.
"Spot Exchange Rate" means, on any day, with respect to any currency other
than Dollars, the spot rate at which Dollars are offered on such day by Citibank
in New York, London, or other city that is a money center for transactions in
Dollars and such currency (determined by the Issuer in its reasonable
discretion), as prevailing on a local business day for transactions in such
currency at approximately 11:00 a.m. (local time).
"Standard & Poor's" means Standard & Poor's Ratings Services, or any
successor thereto.
"sub-Accounts" means each of the sub-Accounts referred to in Section
402(a).
"subordinated class" means (a) with respect to Class A Notes of a series,
Class B Notes or Class C Notes of that series, and (b) with respect to Class B
Notes of a series, Class C Notes of that series.
"subordinated Notes" means Notes of a subordinated class of a series.
"Supplemental Account" means the trust account or accounts designated as
such and established pursuant to Section 402(a).
"Supplemental indenture" means an indenture supplemental to this Indenture
executed and delivered pursuant to Article X.
"Surplus Finance Charge Collections" means with respect to any Due
Period, the amount of Investor Finance Charge Collections allocated pursuant to
Section 4.02 of the Series 2000 Supplement, minus
-----
(a) the amount of the Series 2000 Monthly Servicing Fee (as defined in
the Series 2000 Supplement) for that Due Period;
(b) the amount of the Trustee's fees and expenses payable pursuant to
Section 807 for that Due Period;
(c) the sum of the targeted deposits to the Interest Funding Account
determined pursuant to Section 501 for that Due Period; and
(d) the amount of the Series 2000 Default Amount for that Due Period;
provided, however, that solely for purposes of calculating Surplus Finance
Charge Collections for determining funding obligations for the Class C Reserve
sub-
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Account of any tranche of Class C Notes, for purposes of clause (c), the
targeted deposit to be made to the Interest Funding sub-Account for a tranche of
Notes that has the benefit of a Performing Derivative Agreement will be deemed
to be the greater of (i) the amount payable by the Issuer under that Derivative
Agreement and (ii) the amount that would be payable by the Issuer if the
Derivative Agreement were non-Performing. For purposes of this proviso, the
amount to be payable by the Issuer under a Derivative Agreement that is an
interest rate cap or similar agreement will be deemed to be the cap rate under
that Derivative Agreement.
"Temporary Global Note" is defined in Section 205.
"terms document" means, with respect to any series, class or tranche of
Notes, the Issuer Certificate or supplemental indenture that establishes such
series, class or tranche.
"Threshold Conditions" means the conditions set forth in Annex I.
"tranche" means, with respect to any class of Notes, Notes of such class
which have identical terms, conditions and tranche designation. Notes of a
single tranche may be issued on different dates.
"Trust Agreement" means the Trust Agreement, dated as of September 12,
2000, among Citibank (Nevada) and Citibank (South Dakota), as Beneficiaries, and
The Bank of New York (Delaware), as Issuer Trustee, as amended, supplemented,
restated or otherwise modified from time to time.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this Indenture was executed except as provided in Section 1005.
"Trustee" means the Person named as the Trustee in the first paragraph of
this Indenture until a successor Trustee will have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" means and
includes each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the Notes of any
series, class or tranche means the Trustee with respect to Notes of that series,
class or tranche.
"Trustee Authorized Officer", when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer or trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
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"U.S. Depository" means, unless otherwise specified by the Issuer pursuant
to either Section 204, 206 or 301, with respect to Notes of any tranche issuable
or issued as a Global Note within the United States, The Depository Trust
Company, New York, New York, or any successor thereto registered as a clearing
agency under the Securities Exchange Act, or other applicable statute or
regulation.
"UCC" means the applicable Uniform Commercial Code.
"Weighted Average Interest Rates" means, with respect to any Outstanding
Notes of a group, series, class or tranche (other than any tranche of RSP
Notes), or of all of the Outstanding Notes (other than any tranche of RSP
Notes), on any date, the weighted average of the following rates of interest:
(a) in the case of a tranche of Dollar Interest-bearing Notes with no
Derivative Agreement for interest (or a Derivative Agreement, such as an
interest rate cap, that by its terms covers only a portion of the interest
on such tranche of Notes) or a non-Performing Derivative Agreement for
interest, the rate of interest applicable to that tranche on that date
including, if the Derivative Agreement is an interest rate cap, the
uncapped portion of the rate of interest applicable to that tranche on that
date;
(b) in the case of a tranche of Discount Notes, the rate of accretion
(converted to an accrual rate) of that tranche on that date;
(c) in the case of a tranche of Notes with a Performing Derivative
Agreement for interest, the rate of interest payable by the Issuer to the
applicable Derivative Counterparty on that date; and
(d) in the case of a tranche of Foreign Currency Notes with a non-
Performing Derivative Agreement, the rate of interest that would have been
payable by the Issuer to the applicable Derivative Counterparty if that
Derivative Agreement had been Performing on that date.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Issuer to the Trustee to take any action under any provision of
this Indenture, the Issuer will furnish to the Trustee an Issuer Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Notwithstanding the provisions of Section 311 and of the preceding
paragraph, if all Notes of a class are not to be originally issued at one time,
it will not be necessary to deliver the Issuer Certificate otherwise required
pursuant to Section 311 or the Issuer Certificate and Opinion of
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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 class to be issued.
With respect to Notes of a tranche offered in a Multiple Issuance Series,
the Trustee may rely, as to the authorization by the Issuer of any of such
Notes, the form and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and the other documents
delivered pursuant to Section 311 and this Section, as applicable, in connection
with the first authentication of Notes of such tranche.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for the written statement
required by Section 1104) will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that such individual has made such examination or
investigation as is necessary to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
one or more specified Persons, one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to the other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Issuer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by the
Issuer stating that the information with respect to such factual matters is in
the possession of the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Noteholders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action (collectively, "action")
provided by this Indenture to be given or taken by Noteholders of any series,
class or tranche may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by an agent
duly appointed in writing; and, except as herein or therein otherwise expressly
provided, such action will become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent will be sufficient for
any purpose of this Indenture and (subject to Section 801) conclusive in favor
of the Trustee and the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness to such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
an officer of a corporation or a member of a partnership, on behalf of such
corporation or partnership, such certificate or affidavit will also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by the Note
Register. (ii) The ownership of Bearer Notes or coupons will be proved by the
production of such Bearer Notes or coupons or by a certificate, satisfactory to
the Issuer, executed by any bank, trust company or recognized securities dealer,
wherever situated, satisfactory to the Issuer. Each such certificate will be
dated and will state that on the date thereof a Bearer Note or coupon bearing a
specified serial number was deposited with or exhibited to such bank, trust
company or recognized securities dealer by the Person named in such certificate.
Any such certificate may be issued in respect of one or more Bearer Notes or
coupons specified therein. The holding by the Person named in any such
certificate of any Bearer Note specified therein will be presumed to continue
for a period of one year from the date of such certificate unless at the time of
any determination of such holding (A) another certificate bearing a later date
issued in respect of the same Bearer Note or coupon produced, (B) the Bearer
Note or coupon specified in such certificate is produced by some other Person or
(C) the Bearer Note or coupon specified in such certificate has ceased to be
Outstanding.
(d) If the Issuer will solicit from the Holders any action, the Issuer may,
at its option, by an Issuer Certificate, fix in advance a record date for the
determination of Holders entitled to give such action, but the Issuer will have
no obligation to do so. If the Issuer does not so fix a record date, such record
date will be the later of 30 days before the first solicitation of such action
or the date of the most recent list of Noteholders furnished to the Trustee
pursuant to Section 901 before such solicitation. Such action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date will be deemed to be Holders for the
28
purposes of determining whether Holders of the requisite proportion of Notes
Outstanding have authorized or agreed or consented to such action, and for that
purpose the Notes Outstanding will be computed as of the record date; provided
that no such authorization, agreement or consent by the Holders on the record
date will be deemed effective unless it will become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
(e) Any action by the Holder of any Note will bind the Holder of every Note
issued upon the transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done or suffered to be done by the Trustee or the Issuer in
reliance thereon whether or not notation of such action is made upon such Note.
SECTION 105. Notices, etc., to Trustee and Issuer. Any action of
Noteholders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Noteholder or by the Issuer will be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(b) the Issuer by the Trustee or by any Noteholder will be sufficient
for every purpose hereunder (except as provided in Section 701(c)) if in
writing and mailed, first-class postage prepaid, to the Issuer addressed to
it at the address of its principal office or at any other address
previously furnished in writing to the Trustee by the Issuer.
SECTION 106. Notices to Noteholders; Waiver. (a) Where this Indenture or
any Registered Note provides for notice to Registered Noteholders of any event,
such notice will be sufficiently given (unless otherwise herein or in such
Registered Note expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Note affected by such event, at
his address as it appears in the Note Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Registered Noteholders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Noteholders will affect the sufficiency of such notice with
respect to other Noteholders. Where this Indenture or any Registered Note
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver will be the equivalent of such notice. Waivers of notice by
Registered Noteholders will be filed with the Trustee, but such filing will not
be a condition precedent to the validity of any action taken in reliance upon
such waiver.
(b) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or otherwise, it will be impractical to mail
notice of any event to any Holder of a Registered Note when such notice is
required to be given pursuant to any provision of this Indenture, then any
method of notification as will be satisfactory to the Trustee and the Issuer
will be deemed to be a sufficient giving of such notice.
29
(c) No notice will be mailed to a Holder of Bearer Notes or coupons in
bearer form. In the case of any tranche with respect to which any Bearer Notes
are Outstanding, any notice required or permitted to be given to Holders of such
Bearer Notes will be published in an Authorized Newspaper within the time period
prescribed in this Indenture or the applicable terms document.
(d) With respect to any tranche of Notes, the applicable terms document may
specify different or additional means of giving notice to the Holders of the
Notes of such tranche.
SECTION 107. Conflict with Trust Indenture Act. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision will control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision will be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
will not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuer will bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause. In case any provision in this Indenture
or in the Notes will be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in any
Notes, express or implied, will give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Note Registrar, Derivative Counterparties (to the extent specified in the
applicable Derivative Agreement) and the Holders of Notes (or such of them as
may be affected thereby), any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 112. Governing Law. This Indenture will be construed in
accordance with and governed by the laws of the State of New York.
SECTION 113. Counterparts. This Indenture may be executed in any number
of counterparts, each of which so executed will be deemed to be an original, but
all such counterparts will together constitute but one and the same instrument.
SECTION 114. Interest Period Convention. Unless otherwise specified in the
applicable terms document, interest for any period will be calculated from and
including the first day of such period, to but excluding the last day of such
period.
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SECTION 115. Indenture Referred to in the Trust Agreement. This is the
Indenture referred to in the Trust Agreement.
ARTICLE II
Note Forms
SECTION 201. Forms Generally. The Notes will have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may be
required to comply with applicable laws or regulations or with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
Issuer, as evidenced by the Issuer's execution of such Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The definitive Notes will be printed, lithographed or engraved or produced
by any combination of these methods on steel engraved borders or may be produced
in any other manner, all as determined by the Issuer, as evidenced by the
Issuer's execution of such Notes, subject, with respect to the Notes of any
series, class or tranche, to the rules of any securities exchange on which such
Notes are listed.
SECTION 202. Forms of Notes. Each Note will be in one of the forms
approved from time to time by or pursuant to an Issuer Certificate, or
established in one or more indentures supplemental hereto. Before the delivery
of a Note to the Trustee for authentication in any form approved by or pursuant
to an Issuer Certificate, the Issuer will deliver to the Trustee the Issuer
Certificate by or pursuant to which such form of Note has been approved, which
Issuer Certificate will have attached thereto a true and correct copy of the
form of Note which has been approved thereby or, if an Issuer Certificate
authorizes a specific officer or officers of the Managing Beneficiary to approve
a form of Note, a certificate of such officer or officers approving the form of
Note attached thereto. Any form of Note approved by or pursuant to an Issuer
Certificate must be acceptable as to form to the Trustee, such acceptance to be
evidenced by the Trustee's authentication of Notes in that form or a certificate
signed by a Trustee Authorized Officer and delivered to the Issuer.
SECTION 203. Form of Trustee's Certificate of Authentication. The form of
Trustee's Certificate of Authentication for any Note issued pursuant to this
Indenture will be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series, class or tranche designated
therein referred to in the within-mentioned Indenture.
31
[INDENTURE TRUSTEE NAME], as Trustee,
By:___________________________
Authorized Signatory
SECTION 204. Notes Issuable in the Form of a Global Note. (a) If the
Issuer establishes pursuant to Sections 202 and 301 that the Notes of a
particular series, class or tranche are to be issued in whole or in part in the
form of one or more Global Notes, then the Issuer will execute and the Trustee
or its agent will, in accordance with Section 303 and the Issuer Certificate
delivered to the Trustee or its agent thereunder, authenticate and deliver, such
Global Note or Notes, which, unless otherwise provided in the applicable terms
document (i) will represent, and will be denominated in an amount equal to the
aggregate stated principal amount (or in the case of Discount Notes, the
aggregate stated principal amount at the Expected Principal Payment Date of such
Notes) of, the Outstanding Notes of such series, class or tranche to be
represented by such Global Note or Notes, or such portion thereof as the Issuer
will specify in an Issuer Certificate, (ii) in the case of Registered Notes,
will be registered in the name of the Depository for such Global Note or Notes
or its nominee, (iii) will be delivered by the Trustee or its agent to the
Depository or pursuant to the Depository's instruction, (iv) if applicable, will
bear a legend substantially to the following effect: "Unless this Note is
presented by an authorized representative of The Depository Trust Company, a New
York corporation ("DTC"), to the Issuer or its agent for registration of
transfer, exchange or payment, and any note issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), any transfer, pledge or other
use hereof for value or otherwise by or to any person is wrongful inasmuch as
the registered owner hereof, Cede & Co., has an interest herein" and (v) may
bear such other legend as the Issuer, upon advice of counsel, deems to be
applicable.
(b) Notwithstanding any other provisions of this Section 204 or of Section
305, and subject to the provisions of clause (c) below, unless the terms of a
Global Note or the applicable terms document expressly permit such Global Note
to be exchanged in whole or in part for individual Notes, a Global Note may be
transferred, in whole but not in part and in the manner provided in Section 305,
only to a nominee of the Depository for such Global Note, or to the Depository,
or a successor Depository for such Global Note selected or approved by the
Issuer, or to a nominee of such successor Depository.
(c) With respect to Notes issued within the United States, unless otherwise
specified in the applicable terms document, or with respect to Notes issued
outside the United States, if specified in the applicable terms document:
(i) If at any time the Depository for a Global Note notifies the
Issuer that it is unwilling or unable to continue as Depository for such
Global Note or if at any time the Depository for the Notes for such series,
class or tranche ceases to be a clearing agency
32
registered under the Securities Exchange Act, or other applicable statute
or regulation, the Issuer will appoint a successor Depository with respect
to such Global Note. If a successor Depository for such Global Note is not
appointed by the Issuer within 90 days after the Issuer receives such
notice or becomes aware of such ineligibility, the Issuer will execute, and
the Trustee or its agent, upon receipt of an Issuer Certificate requesting
the authentication and delivery of individual Notes of such series, class
or tranche in exchange for such Global Note, will authenticate and deliver,
individual Notes of such series, class or tranche of like tenor and terms
in an aggregate stated principal amount equal to the stated principal
amount of the Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion determine
that the Notes of any series, class or tranche or portion thereof issued or
issuable in the form of one or more Global Notes will no longer be
represented by such Global Note or Notes. In such event the Issuer will
execute, and the Trustee, upon receipt of an Issuer Certificate requesting
the authentication and delivery of individual Notes of such series, class
or tranche in exchange in whole or in part for such Global Note, will
authenticate and deliver individual Notes of such series, class or tranche
of like tenor and terms in definitive form in an aggregate principal stated
amount equal to the stated principal amount of such Global Note or Notes
representing such series, class or tranche or portion thereof in exchange
for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 202 and 301 with
respect to Notes issued or issuable in the form of a Global Note, the
Depository for such Global Note may surrender such Global Note in exchange
in whole or in part for individual Notes of such series, class or tranche
of like tenor and terms in definitive form on such terms as are acceptable
to the Issuer and such Depository. Thereupon the Issuer will execute, and
the Trustee or its agent will authenticate and deliver, without service
charge, (A) to each Person specified by such Depository a new Note or Notes
of the same series, class or tranche of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate stated
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Note; and (B) to such Depository a new Global Note
of like tenor and terms and in an authorized denomination equal to the
difference, if any, between the stated principal amount of the surrendered
Global Note and the aggregate stated principal amount of Notes delivered to
the Holders thereof. If any Event of Default has occurred with respect to
such Global Notes, and Holders of Notes evidencing not less than 50% of the
unpaid Outstanding Dollar Principal Amount of the Global Notes of that
tranche advise the Trustee and the Depository that a Global Note is no
longer in the best interest of the Noteholders, the Holders of Global Notes
may exchange such Notes for individual Notes.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Issuer will execute and the Trustee or its agent will
authenticate and deliver individual Notes in definitive registered form in
authorized denominations. Upon the exchange of the entire stated principal
amount of a Global Note for individual Notes, such Global Note will be
canceled by the Trustee or its agent. Except as provided in the preceding
33
paragraphs, Notes issued in exchange for a Global Note pursuant to this
Section will be registered in such names and in such authorized
denominations as the Depository for such Global Note, pursuant to
instructions from its direct or indirect participants or otherwise, will
instruct the Trustee or the Note Registrar. The Trustee or the Note
Registrar will deliver such Notes to the Persons in whose names such Notes
are so registered.
SECTION 205. Temporary Global Notes and Permanent Global Notes. (a) If
specified in the applicable terms document for any tranche, all or any portion
of a Global Note may initially be issued in the form of a single temporary
Global Bearer Note or Registered Note (the "Temporary Global Note"), without
interest coupons, in the denomination of the entire aggregate principal amount
of such tranche and substantially in the form set forth in the exhibit with
respect thereto attached to the applicable terms document. The Temporary Global
Note will be authenticated by the Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Notes in
definitive form. The Temporary Global Note may be exchanged as described below
or in the applicable terms document for permanent global Bearer Notes or
Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable terms document, exchanges
of beneficial interests in Temporary Global Notes for beneficial interests in
Permanent Global Notes will be made as provided in this clause. The Manager
will, upon its determination of the date of completion of the distribution of
the Notes of such tranche, so advise the Trustee, the Issuer, the Foreign
Depository, and each foreign clearing agency forthwith. Without unnecessary
delay, but in any event not prior to the Exchange Date, the Issuer will execute
and deliver to the Trustee at its London office or its designated agent outside
the United States Permanent Global Notes in bearer or registered form (as
specified in the applicable terms document) in an aggregate principal amount
equal to the entire aggregate principal amount of such tranche. Bearer Notes so
issued and delivered may have coupons attached. The Temporary Global Note may be
exchanged for an equal aggregate principal amount of Permanent Global Notes only
on or after the Exchange Date. A United States Person may exchange the portion
of the Temporary Global Note beneficially owned by it only for an equal
aggregate principal amount of Permanent Global Notes in registered form bearing
the applicable legend set forth in the form of Registered Note attached to the
applicable terms document and having a minimum denomination of $500,000, which
may be in temporary form if the Issuer so elects. The Issuer may waive the
$500,000 minimum denomination requirement if it so elects. Upon any demand for
exchange for Permanent Global Notes in accordance with this clause, the Issuer
will cause the Trustee to authenticate and deliver the Permanent Global Notes to
the Holder (x) outside the United States, in the case of Bearer Notes and (y)
according to the instructions of the Holder, in the case of Registered Notes but
in either case only upon presentation to the Trustee of a written statement
substantially in the form of Exhibit E-1 (or such other form as the Issuer may
determine) with respect to the Temporary Global Note or portion thereof being
exchanged signed by a foreign clearing agency and dated on the Exchange Date or
a subsequent date, to the effect that it has received in writing or by tested
telex a certification substantially in the form of (i) in the case of beneficial
ownership of the Temporary Global Note or a portion thereof being exchanged by a
United States institutional investor pursuant to this clause, the certificate in
the form of Exhibit E-2 (or such other form as the Issuer may determine) signed
by the Manager which sold the relevant Notes or (ii) in all other
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cases, the certificate in the form of Exhibit E-3 (or such other form as the
Issuer may determine), the certificate referred to in this clause (ii) being
dated on the earlier of the first payment of interest in respect of such Note
and the date of the delivery of such Note in definitive form. Upon receipt of
such certification, the Trustee will cause the Temporary Global Note to be
endorsed in accordance with clause (d). Any exchange as provided in this Section
will be made free of charge to the Holders and the beneficial owners of the
Temporary Global Note and to the beneficial owners of the Permanent Global Note
issued in exchange, except that a person receiving the Permanent Global Note
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not receive such Permanent Global Note in person at
the offices of a foreign clearing agency.
(c) The delivery to the Trustee by a foreign clearing agency of any written
statement referred to above may be relied upon by the Issuer and the Trustee as
conclusive evidence that a corresponding certification or certifications has or
have been delivered to such foreign clearing agency pursuant to the terms of
this Indenture.
(d) Upon any such exchange of all or a portion of the Temporary Global Note
for a Permanent Global Note or Notes, such Temporary Global Note will be
endorsed by or on behalf of the Trustee to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of such
Permanent Global Note or Notes. Until so exchanged in full, such Temporary
Global Note will in all respects be entitled to the same benefits under this
Indenture as Permanent Global Notes authenticated and delivered hereunder except
that the beneficial owners of such Temporary Global Note will not be entitled to
receive payments of interest on the Notes until they have exchanged their
beneficial interests in such Temporary Global Note for Permanent Global Notes.
SECTION 206. Beneficial Ownership of Global Notes. Until definitive Notes
have been issued to the applicable Noteholders pursuant to Section 204 or as
otherwise specified in any applicable terms document:
(a) the Issuer and the Trustee may deal with the applicable clearing
agency and the clearing agency's participants for all purposes (including
the making of distributions) as the authorized representatives of the
respective Note Owners; and
(b) the rights of the respective Note Owners will be exercised only
through the applicable clearing agency and the clearing agency's
participants and will be limited to those established by law and agreements
between such Note Owners and the clearing agency and/or the clearing
agency's participants. Pursuant to the operating rules of the applicable
clearing agency, unless and until Notes in definitive form are issued
pursuant to Section 204, the clearing agency will make book-entry transfers
among the clearing agency's participants and receive and transmit
distributions of principal and interest on the related Notes to such
clearing agency's participants.
For purposes of any provision of this Indenture requiring or permitting
actions with the consent of, or at the direction of, Noteholders evidencing a
specified percentage of the aggregate
35
unpaid principal amount of Outstanding Notes, such direction or consent may be
given by Note Owners (acting through the clearing agency and the clearing
agency's participants) owning interests in Notes evidencing the requisite
percentage of principal amount of Notes.
SECTION 207. Notices to Depository. Whenever any notice or other
communication is required to be given to Noteholders with respect to which book-
entry Notes have been issued, unless and until Notes in definitive form will
have been issued to the related Note Owners, the Trustee will give all such
notices and communications to the applicable Depository.
ARTICLE III
The Notes
SECTION 301. General Title; General Limitations; Issuable in Series; Terms
of a Series, Class or Tranche. (a) The aggregate stated principal amount of
Notes which may be authenticated and delivered and Outstanding under this
Indenture is not limited.
(b) The Notes may be issued in one or more series, classes or tranches up
to an aggregate stated principal amount of Notes as from time to time may be
authorized by the Issuer. All Notes of each series, class or tranche under this
Indenture will in all respects be equally and ratably entitled to the benefits
hereof with respect to such series, class or tranche without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Expected Principal Payment Date or Legal Maturity Date of the Notes
of such series, class or tranche, except as specified in the applicable terms
document for such series, class or tranche.
(c) Each Note issued must be assigned to a group of Notes for purposes of
allocations pursuant to Article V. On the date of this Indenture, a single group
of Notes identified as "Group 1" has been established for allocation purposes in
Article V. Additional groups may be established from time to time pursuant to
supplemental indentures.
(d) Each Note issued must be part of a series, class and tranche of Notes
for purposes of allocations pursuant to Article V. A series, class or tranche of
Notes is created pursuant to an Issuer Certificate or a supplemental indenture.
(e) Each series of Notes may, but need not be, subdivided into multiple
classes. This Indenture provides for up to three classes of Notes: Class A,
Class B and Class C. As specified in Article V, Notes belonging to Class A in
any series are entitled to specified payment priorities over Class B and Class C
Notes in that series. Notes belonging to Class B in any series are entitled to
specified payment priorities over Class C Notes in that series. Class C Notes
have the benefit of the Class C Reserve Account. The applicable terms document
may provide for more or different classes of Notes.
(f) Notes of a single series that belong to separate classes in that series
belong to separate tranches on the basis of the difference in class membership.
36
(g) Each class of Notes may consist of a single tranche or may be
subdivided into multiple tranches. Notes of a single class of a series will
belong to different tranches if they have different terms and conditions. With
respect to any class of Notes, Notes which have identical terms, conditions and
tranche designation will be deemed to be part of a single tranche.
(h) Each series, class or tranche of Notes will be created either by or
pursuant to an Issuer Certificate or a supplemental indenture. The Notes of each
such series, class or tranche may have such Expected Principal Payment Date or
Dates or Legal Maturity Date or Dates, be issuable at such premium over or
discount from their face value, bear interest at such rate or rates (which may
be fixed or floating), from such date or dates, payable in such installments and
on such dates and at such place or places to the Holders of Notes registered as
such on such Record Dates, or may bear no interest, and have such terms, all as
will be provided for in or pursuant to the applicable terms document. There may
also be established in or pursuant to an Issuer Certificate or a supplemental
indenture before the issuance of Notes of each such series, class or tranche,
provision for:
(i) the series designation and, if such series will be part of a group
of series for purposes of allocations and reallocations of Principal
Collections and/or Finance Charge Collections, the manner and extent to
which each series in the group will be subject to allocations and
reallocations;
(ii) the stated principal amount of the Notes and whether they are
Class A Notes, Class B Notes or Class C Notes or a tranche of any of these
classes;
(iii) the Required Subordinated Amount (if any) for such class or
tranche of Notes;
(iv) the currency or currencies in which the Notes of such series,
class or tranche will be denominated and in which payments of principal of,
and interest on, such Notes will or may be payable;
(v) if the principal of or interest, if any, on the Notes of such
series, class or tranche are to be payable, at the election of the Issuer
or a Holder thereof, in a currency or currencies other than that in which
the Notes are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(vi) if the amount of payments of principal of or interest, if any, on
the Notes of such series, class or tranche may be determined with reference
to an index based on (A) a currency or currencies other than that in which
the Notes are stated to be payable, (B) changes in the prices of one or
more other securities or groups or indexes of securities or (C) changes in
the prices of one or more commodities or groups or indexes of commodities,
or any combination of the foregoing, the manner in which such amounts will
be determined;
37
(vii) the price or prices at which the Notes of such series, class or
tranche will be issued;
(viii) the Expected Principal Payment Date (which will not be later
than two years before the Termination Date (as defined in the Series 2000
Supplement) of the Collateral Certificate) and Legal Maturity Date (which
will not be later than the Termination Date (as defined in the Series 2000
Supplement) of the Collateral Certificate) of the Notes of such series,
class or tranche;
(ix) the times at which the Notes of such series, class or tranche
may, pursuant to any optional or mandatory redemption provisions, be
redeemed, and the other terms and provisions of any such redemption
provisions;
(x) the rate per annum at which the Notes of such series, class or
tranche will bear interest, if any, or the formula or index on which such
rate will be determined, including all relevant definitions, and the date
from which interest will accrue;
(xi) the Interest Payment Dates, if any, for such Notes;
(xii) if such Notes are to be Discount Notes or foreign currency
Notes, the Initial Dollar Principal Amount of such Notes, and the means for
calculating the Outstanding Dollar Principal Amount of such Notes;
(xiii) whether or not application will be made to list such Notes of
such series, class or tranche on any securities exchange;
(xiv) any Event of Default or Early Redemption Event with respect to
the Notes of such series, class or tranche, if not set forth herein and any
additions, deletions or other changes to the Events of Default or Early
Redemption Events set forth herein that will be applicable to the Notes of
such series, class or tranche (including a provision making any Event of
Default or Early Redemption Event set forth herein inapplicable to the
Notes of that series, class or tranche);
(xv) the appointment by the Trustee of an Authenticating Agent in one
or more places other than the location of the office of the Trustee with
power to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Notes of such series, class or tranche
in connection with such transactions as will be specified in the provisions
of this Indenture or in or pursuant to the applicable terms document
creating such series, class or tranche;
(xvi) if the Notes of such series, class or tranche will be issued in
whole or in part in the form of a Global Note or Global Notes, the terms
and conditions, if any, upon which such Global Note or Global Notes may be
exchanged in whole or in part for other individual Notes; and the
Depository for such Global Note or Global Notes (if other than the
Depository specified in Section 101);
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(xvii) the subordination of the Notes of such series, class or tranche
to any other indebtedness of the Issuer, including without limitation, the
Notes of any other series, class or tranche;
(xviii) if the Notes of such series, class or tranche are to have the
benefit of any Derivative Agreement, the terms and provisions of such
agreement;
(xix) the Record Date for any Payment Date of the Notes of such
series, class or tranche, if different from the last day of the month
before the related Payment Date;
(xx) the Controlled Accumulation Amount (if any) of such class or
tranche;
(xxi) whether or not the Nominal Liquidation Amount of such series,
class or tranche belongs to the portion of the Collateral Certificate
constituting an Excluded Series under the Series 2000 Supplement; and
(xxii) any other terms of such series, class or tranche, which will
not be inconsistent with the provisions of this Indenture;
all upon such terms as may be determined in or pursuant to an Issuer Certificate
or a supplemental indenture with respect to such series, class or tranche.
(i) The form of the Notes of each series, class or tranche will be
established pursuant to the provisions of this Indenture in or pursuant to an
Issuer Certificate or a supplemental indenture creating such series, class or
tranche. The Notes of each series, class or tranche will be distinguished from
the Notes of each other series, class or tranche in such manner, reasonably
satisfactory to the Trustee, as the Issuer may determine.
(j) The Notes of any series, class or tranche will be issued as Registered
Notes, without coupons, or as Bearer Notes, with or without coupons.
(k) Any terms or provisions in respect of the Notes of any series, class or
tranche issued under this Indenture may be determined pursuant to this Section
by providing in the applicable terms document for the method by which such terms
or provisions will be determined.
SECTION 302. Denominations. The Notes of each tranche will be issuable in
such denominations and currency as will be provided in the provisions of this
Indenture or in or pursuant to the applicable terms document. In the absence of
any such provisions with respect to the Registered Notes of any tranche, the
Registered Notes of that tranche will be issued in denominations of $1,000 and
multiples thereof. In the absence of any such provisions with respect to the
Bearer Notes of any tranche, the Bearer Notes of that tranche will be issued in
denominations of 1,000, 5,000, 50,000 and 100,000 units of the applicable
currency.
SECTION 303. Execution, Authentication and Delivery and Dating. (a) The
Notes will be executed on behalf of the Issuer by an Issuer Authorized Officer.
The signature of any
39
officer of the Managing Beneficiary or the Issuer Trustee on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals who
were at any time an Issuer Authorized Officer will bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices before the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Notes executed by the Issuer to the
Trustee for authentication; and the Trustee will, upon request by an Issuer
Certificate, authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
(d) Before any such authentication and delivery, the Trustee will be
entitled to receive, in addition to any Issuer Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, the
Issuer Certificate and any other opinion or certificate relating to the issuance
of the tranche of Notes required to be furnished pursuant to Section 202 or
Section 311.
(e) The Trustee will not be required to authenticate such Notes if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any tranche, all
Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Note will be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Notes. (a) Pending the preparation of definitive
Notes of any tranche, the Issuer may execute, and, upon receipt of the documents
required by Section 303, together with an Issuer Certificate, the Trustee will
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Issuer may determine, as evidenced by the Issuer's execution
of such Notes.
(b) If temporary Notes of any tranche are issued, the Issuer will cause
definitive Notes of such tranche to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes of such tranche
will be exchangeable for definitive Notes of such tranche upon surrender of the
temporary Notes of such tranche at the office or agency of the Issuer in a Place
of Payment, without charge to the Holder; and upon surrender for cancellation of
any one or more temporary Notes the Issuer will execute and the Trustee will
authenticate and deliver in exchange therefor a like stated principal amount of
definitive Notes of such tranche of
40
authorized denominations and of like tenor and terms. Until so exchanged the
temporary Notes of such tranche will in all respects be entitled to the same
benefits under this Indenture as definitive Notes of such tranche.
SECTION 305. Registration, Transfer and Exchange. (a) The Issuer will keep
or cause to be kept a register (herein sometimes referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuer will provide for the registration of Registered Notes, or of
Registered Notes of a particular tranche, and for transfers of Registered Notes
or of Registered Notes of such tranche. Any such register will be in written
form or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
register or registers will be available for inspection by the Trustee at the
office or agency to be maintained by the Issuer as provided in Section 1102.
(b) Subject to Section 204, upon surrender for transfer of any Registered
Note of any tranche at the office or agency of the Issuer in a Place of Payment,
the Issuer will execute, and the Trustee will authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Notes of such tranche of any authorized denominations, of a like aggregate
stated principal amount, Expected Principal Payment Date and Legal Maturity Date
and of like terms.
(c) Subject to Section 204, at the option of the Holder, Notes of any
tranche may be exchanged for other Notes of such tranche of any authorized
denominations, of a like aggregate stated principal amount, Expected Principal
Payment Date and Legal Maturity Date and of like terms, upon surrender of the
Notes to be exchanged at such office or agency. Registered Notes, including
Registered Notes received in exchange for Bearer Notes, may not be exchanged for
Bearer Notes. At the option of the Holder of a Bearer Note, subject to
applicable laws and regulations, Bearer Notes may be exchanged for other Bearer
Notes or Registered Notes (of the same class and tranche) of authorized
denominations of like aggregate fractional undivided interests in the
Noteholders' interest, upon surrender of the Bearer Notes to be exchanged at an
office or agency of the Note Registrar located outside the United States. Each
Bearer Note surrendered pursuant to this Section will have attached thereto all
unmatured coupons; provided, however, that any Bearer Note, so surrendered after
the close of business on the last day of the month preceding the relevant
Payment Date need not have attached the coupon relating to such Payment Date.
Whenever any Notes are so surrendered for exchange, the Issuer will execute, and
the Trustee will authenticate and deliver (in the case of Bearer Notes, outside
the United States), the Notes which the Noteholders making the exchange is
entitled to receive.
(d) All Notes issued upon any transfer or exchange of Notes will be the
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such transfer
or exchange.
(e) Every Note presented or surrendered for transfer or exchange will (if
so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by
a written instrument of transfer
41
in form satisfactory to the Issuer and the Note Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred or exchanged,
no service charge will be made on any Noteholder for any transfer or exchange of
Notes, but the Issuer may (unless otherwise provided in such Note) require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Notes, other than
exchanges pursuant to Section 304 or 1006 not involving any transfer.
(g) None of the Issuer, the Trustee, any agent of the Trustee, any Paying
Agent or the Note Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
(h) The Issuer initially appoints Citibank, N.A., to act as Note Registrar
for the Registered Notes on its behalf. The Issuer may at any time and from
time to time authorize any Person to act as Note Registrar in place of Citibank,
N.A. with respect to any tranche of Notes issued under this Indenture.
(i) Registration of transfer of Notes containing the following legend or to
which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF
MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN."
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from the
registration requirements under the Securities Act, the transferor or the
transferee will deliver, at its expense, to the Issuer and the Trustee, an
investment letter from the transferee, substantially in the form of the
investment letter attached hereto as Exhibit D 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 Trustee and the Note Registrar receive an Opinion of
Counsel, satisfactory to each of them, to the effect that such legend may be
removed.
42
Whenever a Note containing the legend referred to above is presented to the
Note Registrar for registration of transfer, the Note Registrar will promptly
seek instructions from the Issuer regarding such transfer and will be entitled
to receive an Issuer's Certificate prior to registering any such transfer. The
Issuer hereby agrees to indemnify the Note Registrar and the Trustee and to hold
each of them harmless against any loss, liability or expense incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by them in relation to any such instructions furnished
pursuant to this clause.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes. (a) If (i) any
mutilated Note (together, in the case of Bearer Notes, with all unmatured
coupons (if any) appertaining thereto) is surrendered to the Trustee, or the
Issuer and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Issuer and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Issuer or the
Trustee that such Note has been acquired by a bona fide purchaser, the Issuer
will execute and upon its request the Trustee will authenticate and deliver (in
the case of Bearer Notes, outside the United Sates), in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor,
series, class or tranche, Expected Principal Payment Date, Legal Maturity Date
and stated principal amount, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Issuer in its discretion may, instead
of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of the same series, class or tranche duly issued hereunder.
(e) The provisions of this Section are exclusive and will preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved. (a) Unless
otherwise provided with respect to such Note pursuant to Section 301, interest
payable on any Registered Note will be paid to the Person in whose name that
Note (or one or more Predecessor Notes) is registered at the close of business
on the most recent Record Date and interest payable on any Bearer Note will be
paid to the bearer of that Note (or the applicable coupon).
43
(b) Subject to clause (a), each Note delivered under this Indenture upon
transfer of or in exchange for or in lieu of any other Note will carry the
rights to interest accrued or principal accreted and unpaid, and to accrue or
accrete, which were carried by such other Note.
SECTION 308. Persons Deemed Owners. The Issuer, the Trustee, the Issuer
Trustee, the Beneficiaries and any agent of the Issuer, the Trustee, the Issuer
Trustee, or the Beneficiaries may treat the Person who is proved to be the owner
of such Note pursuant to Section 104(c) as the owner of such Note for the
purpose of receiving payment of principal of and (subject to Section 307)
interest on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Issuer, the Trustee, the Issuer Trustee, or the
Beneficiaries nor any agent of the Issuer, the Trustee, the Issuer Trustee, or
the Beneficiaries will be affected by notice to the contrary.
SECTION 309. Cancellation. All Notes surrendered for payment, redemption,
transfer or exchange will, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and, if not already canceled, will be promptly
canceled by it. The Issuer may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Issuer may have acquired in any manner whatsoever, and all Notes so
delivered will be promptly canceled by the Trustee. No Note will be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. The Trustee will
dispose of all canceled Notes in accordance with its customary procedures and
will deliver a certificate of such disposition to the Issuer.
SECTION 310. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, (a) interest on the Notes computed at a fixed rate
will be calculated on the basis of a 360-day year of twelve 30-day months and
(b) interest on Notes computed on the basis of a floating or periodic rate will
be calculated on the basis of a 360-day year for the actual number of days
elapsed.
SECTION 311. New Issuances of Notes. (a) The Issuer may issue new Notes
of any series, class or tranche, so long as the following conditions precedent
are satisfied:
(i) on or before the fourth Business Day before the date that the new
issuance is to occur, the Issuer gives the Trustee and the Rating Agencies
written notice of the issuance;
(ii) the Issuer delivers to the Trustee an Issuer Certificate to the
effect that:
(A) the Issuer reasonably believes that the new issuance will not
at the time of its occurrence or at a future date cause an Adverse
Effect on any Outstanding Notes;
(B) all instruments furnished to the Trustee conform to the
requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Notes;
44
(C) the form and terms of such Notes have been established in
conformity with the provisions of this Indenture;
(D) all laws and requirements with respect to the execution and
delivery by the Issuer of such Notes have been complied with, the
Issuer has the 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 Trustee, constitute legal,
valid and binding obligations of the Issuer enforceable in accordance
with their terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws and legal principles affecting creditors' rights generally from
time to time in effect and to general equitable principles, whether
applied in an action at law or in equity) and entitled to the benefits
of this Indenture, equally and ratably with all other Notes, if any,
of such series, class or tranche Outstanding, subject to the terms of
this Indenture and each terms document; and
(E) such other matters as the Trustee may reasonably request;
(iii) the Issuer will have delivered to the Trustee and the Rating
Agencies a Master Trust Tax Opinion and an Issuer Tax Opinion with respect
to such issuance; provided, however, that if the Threshold Conditions are
satisfied, the Issuer at its option, will not be required to deliver such
opinions;
(iv) either (A) all of the following conditions are met:
(1) such Notes are denominated in Dollars;
(2) the interest rate applicable to such Notes is either a fixed
rate of interest, or a floating rate of interest based on the London
interbank offered rate, the prime or base rate of a Bank or another
major money center bank, the federal funds rate or the Treasury xxxx
rate, or another interest rate index with respect to which the Issuer
has received written confirmation from the applicable Rating Agencies
that issuance of Notes with an interest rate based on such interest
rate index will not have a Ratings Effect on any Outstanding Notes;
(3) if the Notes of the new issuance will have the benefit of a
Derivative Agreement, with respect to the form of such Derivative
Agreement and the applicable Derivative Counterparty, the Issuer has
received written confirmation from the applicable Rating Agencies that
entering into such Derivative Agreement on such form and with such
Derivative Counterparty will not have a Ratings Effect on any
Outstanding Notes;
(4) the Legal Maturity Date of such Notes is no more than 14
years after the date of issuance of such Notes; and
45
(5) any other conditions specified by a Rating Agency to the
Issuer in writing;
or (B) the Issuer obtains written confirmation from the applicable Rating
Agencies that the issuance of such Notes will not have a Ratings Effect on
any Outstanding Notes;
(v) either (A) at the time of the new issuance, the Notes of the new
issuance will be rated no lower than the following ratings categories by at
least one nationally recognized Rating Agency:
Note Rating
--------- ---------------------------------------
Class A AAA or its equivalent for long-
term Notes, or A-1+/P-1 or
its equivalent for commercial paper
Notes
Class B A or its equivalent
Class C BBB or its equivalent
or (B) the Issuer has obtained written confirmation from each Rating Agency
that there will be no Ratings Effect with respect to any Outstanding Notes
as a result of the issuance of those Notes;
(vi) no Amortization Event as defined in the Pooling and Servicing
Agreement with respect to the Collateral Certificate will have occurred and
be continuing as of the date of the new issuance, and no event which, with
the passage of time, would constitute an Amortization Event described in
Section 9.01(e) of the Pooling and Servicing Agreement will have occurred
and be continuing as of the date of the new issuance;
(vii) in the case of foreign currency Notes, the Issuer will have
appointed one or more Paying Agents in the appropriate countries;
(viii) in the case of the issuance of Notes of a tranche of a Multiple
Issuance Series, the conditions specified in Sections 312 and 313, as
applicable, are satisfied;
(ix) if the issuance of Notes results in an increase in the targeted
deposit amount of any Class C Reserve sub-Account of a tranche of Class C
Notes of a Multiple Issuance Series, the Issuer will have funded such
increase with a cash deposit to such Class C Reserve sub-Account; and
(x) any other conditions specified in the applicable terms document.
46
(b) The Issuer and the Trustee will not be required to obtain the consent
of any Noteholder of any Outstanding series, class or tranche to issue any
additional Notes of any series, class or tranche.
SECTION 312. Specification of Required Subordinated Amount and other Terms
with Respect to each Class of a Multiple Issuance Series. (a) With respect to
senior classes of non-Discount Notes of a Multiple Issuance Series, and subject
to clause (b):
(i) the Class A Required Subordinated Amount of Class B Notes will be
an amount equal to 5.98291% of the Initial Dollar Principal Amount of that
tranche of Class A Notes;
(ii) the Class A Required Subordinated Amount of Class C Notes will be
an amount equal to 7.97721% of the Initial Dollar Principal Amount of that
tranche of Class A Notes; and
(iii) the Class B Required Subordinated Amount of Class C Notes will
be an amount equal to 133.33333% of the Initial Dollar Principal Amount of
that tranche of Class B Notes.
With respect to senior classes of Discount Notes, the Required Subordinated
Amount will be stated in the applicable terms document, subject to clause (b).
(b) The Issuer may at any time without the consent of any Noteholder change
the Required Subordinated Amounts of a Multiple Issuance Series, the method of
calculating the available subordinated amount of the Notes of a series and the
usage of the subordinated amount of the Notes of a series, and make
corresponding changes in this Indenture, so long as the Issuer has (i) received
written confirmation from each Rating Agency that has rated any Outstanding
Notes of that series that such change will not result in a Ratings Effect with
respect to any Outstanding Notes in that series and (ii) delivered to the
Trustee and the Rating Agencies a Master Trust Tax Opinion and an Issuer Tax
Opinion.
SECTION 313. Required Subordinated Amount Conditions to Issuance of Notes
of a Tranche of a Senior Class of a Multiple Issuance Series. (a) Class A
Required Subordinated Amount of Class B Notes. On the issuance date of Class A
Notes of a tranche of a Multiple Issuance Series, immediately after giving
effect to such issuance, the available subordinated amount of Class B Notes of
that series must be at least equal to the Class A Required Subordinated Amount
of Class B Notes for that series. For purposes of this Section, the available
subordinated amount of Class B Notes of a series as of any date means the sum of
the following, after giving effect to any issuances, deposits, allocations or
payments to be made on that date:
(i) the aggregate Nominal Liquidation Amount of all Outstanding
tranches of Class B Notes of that series on that day;
plus
----
47
(ii) the aggregate amount on deposit in the Principal Funding sub-
Accounts for all Outstanding tranches of Class B Notes of that series
(other than any Receivables Sales Proceeds Deposit Amount of tranches of
Class B Notes of that series);
minus
-----
(iii) the aggregate amount of the Class A Required Subordinated Amount
of Class B Notes for all other tranches of Class A Notes of that series
which are Outstanding on that date;
plus
----
(iv) the aggregate amount of all Class A Usage of Class B Required
Subordinated Amount by any Outstanding tranche of Class A Notes of that
series.
(b) Class A Required Subordinated Amount of Class C Notes. On the issuance
date of Class A Notes of a tranche of a Multiple Issuance Series, immediately
after giving effect to such issuance, the available subordinated amount of Class
C Notes of that series must be at least equal to the Class A Required
Subordinated Amount of Class C Notes for that series. For purposes of this
clause, the available subordinated amount of Class C Notes of a series as of any
date means the sum of the following, after giving effect to any issuances,
deposits, allocations or payments to be made on that date:
(i) the aggregate Nominal Liquidation Amount of all Outstanding
tranches of Class C Notes of that series on that day;
plus
----
(ii) the aggregate amount on deposit in the Principal Funding sub-
Accounts for all Outstanding tranches of Class C Notes of that series
(other than any Receivables Sales Proceeds Deposit Amount of tranches of
Class C Notes of that series);
minus
-----
(iii) the aggregate amount of the Class A Required Subordinated Amount
of Class C Notes for all other tranches of Class A Notes of that series
which are Outstanding on that date;
plus
----
(iv) the aggregate amount of all Class A Usage of Class C Required
Subordinated Amount by any Outstanding tranche of Class A Notes of that
series.
(c) Class B Required Subordinated Amount of Class C Notes. On the
issuance date of Class B Notes of a tranche of a Multiple Issuance Series,
immediately after giving effect to such
48
issuance, the available subordinated amount of Class C Notes of that series must
be at least equal to the Class B Required Subordinated Amount of Class C Notes
for that series. For purposes of this clause, the available subordinated amount
of Class C Notes of a series as of any date means the sum of the following,
after giving effect to any issuances, deposits, allocations or payments to be
made on that date:
(i) the aggregate Nominal Liquidation Amount of all Outstanding
tranches of Class C Notes of that series on that day;
plus
----
(ii) the aggregate amount on deposit in the Principal Funding sub-
Accounts for all Outstanding tranches of Class C Notes of that series
(other than any Receivables Sales Proceeds Deposit Amount of tranches of
Class C Notes of that series);
minus
-----
(iii) the aggregate amount of the Class B Required Subordinated Amount
of Class C Notes for all other tranches of Class B Notes of that series
which are Outstanding on that date;
plus
----
(iv) the aggregate amount of all Class B Usage of Class C Required
Subordinated Amount by any Outstanding tranche of Class B Notes of that
series.
ARTICLE IV
Accounts and Investments
SECTION 401. Collections. Except as otherwise expressly provided herein,
the Trustee may demand payment or delivery of, and will receive and collect,
directly and without intervention or assistance from any fiscal agent or other
intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture including, without limitation, all funds and
other property payable to the Trustee pursuant to the Collateral (collectively,
the "Collections"). The Trustee will hold all such money and property received
by it as part of the Collateral and will apply it as provided in this Indenture.
SECTION 402. Accounts. (a) Accounts; Deposits to and Distributions from
Accounts. On or before the Effective Date, the Issuer will open and will
thereafter cause to be maintained, at an Eligible Institution (initially
Citibank, N.A.), one or more segregated deposit accounts (collectively, the
"Collection Account"). The Issuer will require that all collections received
from the Master Trust pursuant to the Series 2000 Supplement be deposited into
the Collection Account. On or before the Effective Date, the Trustee will cause
to be established and maintained
49
at an Eligible Institution (initially Citibank, N.A.), three segregated trust
accounts denominated as follows: the "Interest Funding Account", the "Principal
Funding Account" and the "Class C Reserve Account", and from time to time in
connection with the issuance of a series, class or tranche of Notes, the Trustee
may establish one or more segregated trust accounts denominated as "Supplemental
Accounts". If, at any time, either the Collection Account, Interest Funding
Account, Principal Funding Account or Class C Reserve Account ceases to be an
Eligible Deposit Account, the Issuer will within 10 Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating Agency
may consent in writing) establish a new Collection Account, Interest Funding
Account, Principal Funding Account or Class C Reserve Account, as the case may
be, which is an Eligible Deposit Account, transfer any cash and/or investments
to such new Collection Account, Interest Funding Account, Principal Funding
Account or Class C Reserve Account and from the date such new Collection
Account, Interest Funding Account, Principal Funding Account or Class C Reserve
Account is established, it will be the "Collection Account", "Interest Funding
Account", "Principal Funding Account" or "Class C Reserve Account", as the case
may be. Each tranche of Notes will have its own sub-Account within the Interest
Funding Account and the Principal Funding Account. Each tranche of Class C Notes
will have its own sub-Account within the Class C Reserve Account. Supplemental
Accounts will be created as specified in the applicable terms document. The
Collection Account, the Interest Funding Account, the Principal Funding Account
and the Class C Reserve Account will receive deposits pursuant to Article V. Any
Supplemental Account will receive deposits as set forth in a supplemental
indenture amending Article V.
(b) All payments to be made from time to time by or on behalf of the
Trustee to Noteholders out of funds in the Accounts pursuant to this Indenture
will be made by or on behalf of the Trustee to the Paying Agent not later than
12:00 noon on the applicable Payment Date or earlier, if necessary, or as
otherwise provided in Article V but only to the extent of available funds in the
applicable sub-Account.
SECTION 403. Investment of Funds in the Accounts. (a) Funds on deposit in
the Accounts will be invested and reinvested by the Trustee at the direction of
the Issuer in one or more Eligible Investments. The Issuer may authorize the
Trustee to make specific investments pursuant to written, telegraphic or
telephonic (subsequently confirmed in writing) instructions, in such amounts as
the Issuer will specify. Notwithstanding the foregoing, funds held by the
Trustee in any of the Accounts will be invested in Eligible Investments that
will mature in each case no later than the date on which such funds in the
Accounts are scheduled to be transferred or distributed by the Trustee pursuant
to this Indenture (or as much earlier as necessary to provide for timely payment
of principal or interest on the applicable Principal Payment Date or Interest
Payment Date).
(b) All funds deposited from time to time in the Accounts pursuant to this
Indenture and all investments made with such funds will be held by the Trustee
in the Accounts as part of the Collateral as herein provided, subject to
withdrawal by the Trustee for the purposes set forth herein. The Issuer will not
direct the Trustee to make any investment of any funds or to sell any investment
held in the Accounts unless the security interest granted and perfected in such
50
Accounts will continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by the Issuer or the
Trustee.
(c) Funds and other property in any of the Accounts will not be commingled
with any other funds or property of the Issuer. Notwithstanding the foregoing,
the Trustee may hold any funds or other property received or held by it as part
of the Accounts in collecting accounts maintained by it in the normal course of
its business and containing funds held by it for other Persons (which may
include the Issuer or an Affiliate thereof), provided that such accounts are
under the sole control of the Trustee and the Trustee maintains adequate records
indicating the ownership of all such funds or property and the portions thereof
held for credit to the applicable Accounts.
(d) The Issuer will not direct the Trustee to make any investment of any
funds in any of the Accounts or to sell any investment held in such Accounts
except under the following terms and conditions:
(i) each such investment will be made in the name of the Trustee (in
its capacity as such) or in the name of a nominee of the Trustee under its
complete and exclusive dominion and control (or, if, as indicated by an
Opinion of Counsel delivered to the Trustee, applicable law provides for
perfection of pledges of an instrument not evidenced by a certificate or
other instrument through registration of such pledge on books maintained by
or on behalf of the issuer of such investment, such pledge may be so
registered);
(ii) the Trustee will have sole control over such investment, the
income thereon and the proceeds thereof;
(iii) other than the investments described in clause (i), any
certificate or other instrument evidencing such investment will be
delivered directly to the Trustee or its agent; and
(iv) the proceeds of each sale of such an investment will be remitted
by the purchaser thereof directly to the Trustee for deposit in the Account
in which such investment was held.
(e) All income or other gain from investments of funds on deposit in the
Accounts (other than the Principal Funding Account) will be treated as Finance
Charge Collections pursuant to Section 501(2). Any loss resulting from such
investments will be charged to the sub-Accounts pro rata based on the amount on
deposit in such sub-Account.
The Issuer may use weighted averaging or any other reasonable method for
allocating losses among such sub-Accounts. Subject to Section 801(c), the
Trustee will not in any way be held liable by reason of any insufficiency in
such sub-Accounts resulting from any loss on any Eligible Investment included
therein except for losses attributable to the Trustee's failure to make
51
payments on such Eligible Investments issued by the Trustee, in its commercial
capacity, in accordance with their terms.
(f) All income or other gain from investments of funds on deposit in the
Principal Funding Account will be applied as set forth in Section 506.
(g) Funds on deposit in the Accounts will be invested and reinvested by the
Trustee to the fullest extent practicable, in such manner as the Trustee will
from time to time determine, but only in one or more Eligible Investments, upon
the occurrence of any of the following events:
(i) the Issuer will have failed to give investment directions to the
Trustee; or
(ii) an Event of Default will have occurred and is continuing but no
Notes have been declared due and payable pursuant to Section 702.
SECTION 404. Excess Funds in the Interest Funding sub-Accounts or
Principal Funding sub-Accounts. (a) With respect to any Due Period, if the
Issuer determines that the amount on deposit in any Interest Funding sub-Account
(after giving effect to all deposits and withdrawals to be made with respect to
such Due Period) is greater than the amount targeted to be on deposit in such
Interest Funding sub-Account with respect to such Due Period (subject to Section
507(e)), such excess will be withdrawn from such sub-Account and treated as
Finance Charge Collections pursuant to Section 501(2).
(b) With respect to any Due Period, if the Issuer determines that the
amount on deposit in any Principal Funding sub-Account (after giving effect to
all deposits and withdrawals to be made with respect to that Due Period) is
greater than the Outstanding Dollar Principal Amount of a tranche of Notes less
the Nominal Liquidation Amount Deficit of that tranche, that excess will be
treated as Finance Charge Collections pursuant to Section 501(2).
ARTICLE V
Allocations, Deposits and Payments
SECTION 501. Allocations of Finance Charge Collections. With respect to
each Due Period, the Trustee will allocate or cause to be allocated (1) Finance
Charge Collections received by the Issuer with respect to that Due Period, and
(2) amounts to be treated as Finance Charge Collections (including pursuant to
Sections 403(e), 404(a) and (b), 506(d), 507(f), 511(f), 519(c), 523(j) and
527(c)) in the following priority:
(a) first, to pay accrued and unpaid fees and expenses of, and other
amounts due to, the Trustee pursuant to Section 807;
(b) second, to make the targeted deposits to the Interest Funding
Account pursuant to Section 503;
52
(c) third, to increase the Invested Amount of the Collateral
Certificate or reimburse any Receivables Sales Proceeds Deposit Deficit
pursuant to Section 527;
(d) fourth, to make the targeted deposit to the Class C Reserve
Account, if any, pursuant to Section 518(a);
(e) fifth, to make any other payment or deposit required by the terms
document of any series, class or tranche of Notes; and
(f) sixth, to the Issuer.
SECTION 502. Allocations of Principal Collections. With respect to each
Due Period, the Trustee will allocate or cause to be allocated (1) Principal
Collections received by the Issuer with respect to that Due Period, and (2)
amounts to be treated as Principal Collections (including pursuant to Section
511(d)) in the following priority:
(a) first, with respect to each Due Period,
(i) first, if after giving effect to deposits to be made with
respect to such Due Period pursuant to Section 501(b), any tranche of
Class A Notes or Class B Notes of a series has not received the full
amount targeted to be deposited pursuant to Section 503 with respect
to that Due Period, then from (A) such Principal Collections and
amounts to be treated as Principal Collections, to the extent the
reallocation thereof under this clause (a) will result in the
reduction of the Nominal Liquidation Amount of tranches of Class C
Notes of that series, together with (B) Receivables Sales Proceeds
Deposit Amounts on deposit in the Principal Funding sub-Account of
tranches of Class C Notes of that as of the last day of that Due
Period, the following amounts will be allocated in the following
priority:
(1) first, in an amount equal to the lesser of the amount of
such funds and the amount of the deficiency in the targeted
amount to be deposited into the Interest Funding sub-Account of
each tranche of Class A Notes of that series, to be allocated to
the Interest Funding sub-Accounts of Class A Notes of that series
pro rata based on the amount of such deficiencies; and
(2) second, in an amount equal to the lesser of the amount
of such funds (after giving effect to clause (1)) and the amount
of the deficiency in the targeted amount to be deposited into the
Interest Funding sub-Account of each tranche of Class B Notes of
that series, to be allocated to the Interest Funding sub-Accounts
of Class B Notes of that series pro rata based on the amount of
such deficiencies;
53
provided, however, that such reallocations will be subject to the
limits of Sections 512, 513 and 514.
(ii) second, with respect to each Due Period, if after giving
effect to deposits to be made with respect to such Due Period pursuant
to Section 501(b) and clause (a)(i), any tranche of Class A Notes of a
series has not received the full amount targeted to be deposited
pursuant to Section 503, then from (A) such Principal Collections and
amounts to be treated as Principal Collections, to the extent the
reallocation thereof under this clause (a) will result in the
reduction of the Nominal Liquidation Amount of tranches of Class B
Notes of that series, together with (B) Receivables Sales Proceeds
Deposit Amounts on deposit in the Principal Funding sub-Account of
tranches of Class B Notes of that series as of the last day of that
Due Period, an amount equal to the lesser of the amount of such funds
and the amount of the deficiency in the targeted amount to the
Interest Funding sub-Account of each tranche of Class A Notes of that
series, will be reallocated to the Interest Funding sub-Accounts of
Class A Notes of that Series pro rata based on the amount of such
deficiencies; provided, however, that such reallocations will be
subject to the limits of Sections 512, 513 and 514.
(b) second, together with amounts available pursuant to Section
523(e), to make the targeted deposits to the Principal Funding Account
pursuant to Section 508; and
(c) third, together with any remaining amounts available pursuant to
Section 523(e), to the Master Trust, to be reinvested in the Collateral
Certificate pursuant to Section 520(c).
SECTION 503. Targeted Deposits of Finance Charge Collections to the
Interest Funding Account. The aggregate amount of Finance Charge Collections
targeted to be deposited into the Interest Funding Account pursuant to Section
501(b) with respect to each Due Period (other than any tranche of RSP Notes) is
equal to the sum of the following amounts. A single tranche of Notes may be
entitled to more than one of the following targeted deposits with respect to any
Due Period. The targeted deposit with respect to any Due Period will also
include any shortfall in the targeted deposit with respect to any prior Due
Period. Unless otherwise specified in the applicable terms document:
(a) Specified Deposits. If the terms document for a tranche of Notes
(other than any tranche of RSP Notes) specifies deposits in addition to or
different from the deposits described below in this Section to be made to
the Interest Funding sub-Account for that tranche, the deposit targeted for
that tranche of Notes with respect to any Due Period is the specified
amount for that Due Period. Unless an earlier date is determined pursuant
to Section 522, these deposits will be made on the dates specified in the
applicable terms document.
(b) Interest Payments not Covered by a Derivative Agreement. Unless
otherwise specified in the applicable terms document: (i) If a tranche of
Outstanding Interest-
54
bearing Notes (other than any tranche of RSP Notes) provides for payments
of interest that are not covered by a Derivative Agreement, the deposit
targeted for that tranche of Notes with respect to each Due Period will be
equal to the amount of interest accrued on the Adjusted Outstanding Dollar
Principal Amount of that tranche of Notes during the period from the
Monthly Interest Date in that Due Period (or the date of issuance of that
tranche for the determination with respect to the first Monthly Interest
Date) to the first Monthly Interest Date after the end of that Due Period.
(ii) If a tranche of Interest-bearing Notes (other than any tranche of RSP
Notes) has a Derivative Agreement that by its terms only covers a portion
of the interest on such tranche of Notes (such as an interest rate cap or
similar agreement), the deposit targeted under this clause will be the
uncapped portion of the interest accrued on the Adjusted Outstanding Dollar
Principal Amount of that tranche of Notes during that period. Unless an
earlier date is determined pursuant to Section 522, these deposits referred
to in this clause (b) will be made on each Monthly Interest Date for the
applicable tranche.
(c) Notes with Performing Derivative Agreements. Unless otherwise
specified in the applicable terms document: (i) If a tranche of Outstanding
Dollar Notes or foreign currency Notes (other than any tranche of RSP
Notes) that has a Performing Derivative Agreement for interest that
provides for monthly payments to the applicable Derivative Counterparty,
the deposit targeted for that tranche of Notes with respect to each Due
Period is equal to the amount required to be paid to the applicable
Derivative Counterparty on the next payment date under that Derivative
Agreement following the end of that Due Period, multiplied by the
Adjustment Ratio for that tranche as of the last day of such Due Period.
Unless an earlier date is determined pursuant to Section 522, these
deposits will be made on the payment date specified in the applicable
Derivative Agreement. (ii) If a tranche of Dollar Notes or foreign currency
Notes (other than any tranche of RSP Notes) that has a Performing
Derivative Agreement for interest that provides for payments less
frequently than monthly to the applicable Derivative Counterparty, the
deposit targeted for that tranche of Notes with respect to each Due Period
is equal to the amount required to be paid to the Derivative Counterparty
on the payment date under that Derivative Agreement next following the end
of that Due Period, and allocable to the period from one such Interest
Deposit Date (or in the case of the first Interest Deposit Date, from the
date of issuance of that tranche of Notes) to the next Interest Deposit
Date, taking into account the applicable interest rate and day count
convention under that Derivative Agreement, multiplied by the Adjustment
Ratio for that tranche as of the last day of such Due Period. Unless an
earlier date is determined pursuant to Section 522, these deposits will be
made on the payment date specified in the applicable Derivative Agreement
in the month in which payment is scheduled to be made to the Derivative
Counterparty, and on the Monthly Interest Date in each other month.
(d) Dollar Notes with non-Performing Derivative Agreements. Unless
otherwise specified in the applicable terms document, if a tranche of
Outstanding Dollar Interest-bearing Notes (other than any tranche of RSP
Notes) has a non-Performing Derivative Agreement for interest, the deposit
targeted for that tranche of Notes with respect to each Due Period will be
equal to the amount of interest accrued on the Adjusted Outstanding
55
Dollar Principal Amount of that tranche of Notes with respect to that Due
Period from the Monthly Interest Date in that Due Period (or the date of
issuance of that tranche for the determination with respect to the first
Monthly Interest Date) to the first Monthly Interest Date after the end of
that Due Period to the extent that such interest would have been covered by
that non-Performing Derivative Agreement. Unless an earlier date is
determined pursuant to Section 522, these deposits will be made on each
Monthly Interest Date for the applicable tranche.
(e) Foreign Currency Notes with non-Performing Derivative Agreements.
Unless otherwise specified in the applicable terms document: (i) If a
tranche of Outstanding foreign currency Notes (other than any tranche of
RSP Notes) has a non-Performing Derivative Agreement for interest that
provides for monthly payments to the applicable derivative counterparty,
then the calculation of the deposit targeted is made with reference to the
amount of Dollars that would have been payable to the applicable Derivative
Counterparty under the Derivative Agreement with respect to that Due Period
if that Derivative Agreement were Performing, multiplied by the Adjustment
Ratio for that tranche as of the last day of such Due Period. Unless an
earlier date is determined pursuant to Section 522, these deposits will be
made on each Monthly Interest Date for the applicable tranche. (ii) If a
tranche of Outstanding foreign currency Notes (other than any tranche of
RSP Notes) has a non-Performing Derivative Agreement for interest that
provides for payments less frequently than monthly to the applicable
Derivative Counterparty, the deposit targeted for that tranche of Notes
with respect to each Due Period is equal to the amount required to be paid
to the Derivative Counterparty on the payment date under that Derivative
Agreement next following the end of that Due Period, and allocable to the
period from one such Interest Deposit Date (or in the case of the first
Interest Deposit Date, from the date of issuance of that tranche of Notes)
to the next Interest Deposit Date, taking into account the applicable
interest rate and day count convention under that Derivative Agreement,
multiplied by the Adjustment Ratio for that tranche as of the last day of
such Due Period. Unless an earlier date is determined pursuant to Section
522, these deposits will be made on each Monthly Interest Date.
(f) Discount Notes. Unless otherwise specified in the applicable terms
document, in the case of a tranche of Outstanding Discount Notes (other
than any tranche of RSP Notes), the deposit targeted for that tranche of
Notes with respect to any Due Period is equal to the amount of accretion of
principal of that tranche of Notes from the Monthly Principal Date in that
Due Period (or in the case of the first Monthly Principal Date, from the
date of issuance of that tranche) to the first Monthly Principal Date after
the end of that Due Period, multiplied by the Adjustment Ratio for that
tranche as of the last day of such Due Period. Unless an earlier date is
determined pursuant to Section 522, these deposits will be made on each
Monthly Principal Date for the applicable tranche.
(g) Interest on Overdue Interest. Unless otherwise specified in the
applicable terms document, the deposit targeted for any tranche of
Outstanding Notes for any month that has accrued and overdue interest will
be the interest accrued on that overdue interest from and including the
Interest Payment Date in that month to but excluding the Interest
56
Payment Date next following that month at the rate of interest applicable
to the principal of that tranche during that period.
SECTION 504. Payments Received from Derivative Counterparties for
Interest; Other Deposits to the Interest Funding Account. The following deposits
and payments will be made to the Interest Funding Account on the following
dates:
(a) Payments Received From Derivative Counterparties for Interest.
Payments received under Derivative Agreements for interest in Dollars will
be deposited into the applicable Interest Funding sub-Account on the date
of receipt. Payments received under Derivative Agreements for interest in
foreign currencies will be made directly to the applicable Paying Agent for
payment to the Holders of the applicable tranche of Notes, or as otherwise
specified in the applicable Derivative Agreement.
(b) Principal Funding Account Earnings. Amounts received pursuant to
Section 506(c) for any tranche of Notes will be deposited into the
applicable Interest Funding sub-Account on each Monthly Interest Date.
(c) Class C Reserve Account. Withdrawals made from any Class C Reserve
sub-Account pursuant to Section 519(a) will be deposited into the
applicable Interest Funding sub-Account on the date specified in Section
519(a).
(d) Receivables Sales Proceeds. Receivables Sales Proceeds received by
the Issuer pursuant to Section 523(i)(ii) for any tranche of RSP Notes will
be deposited into the applicable Interest Funding sub-Account on the date
of receipt by the Issuer.
SECTION 505. Allocation of Deposits to Interest Funding sub-Accounts. The
aggregate amount of the deposits to be made to the Interest Funding Account
pursuant to Section 503 for each Due Period will be allocated, and a portion
deposited into the Interest Funding sub-Account for each tranche of Notes (other
than any tranche of RSP Notes), as follows:
(a) Available Amounts Equal to Targeted Amounts. If the amount of
funds available for a Due Period pursuant to Section 501(b) is at least
equal to the aggregate amount of the deposits and payments targeted by
Section 503, then the full amount of each such deposit and payment will be
made.
(b) Available Amounts are Less than Targeted Amounts. (i) If the
amount of funds available for a Due Period pursuant to Section 501(b) is
less than the aggregate amount of the deposits and payments targeted by
Section 503, then the amount available will be allocated to each series of
Notes pro rata based on the ratio of the Nominal Liquidation Amount of all
Notes of that series to the aggregate Nominal Liquidation Amount of all
series.
(ii) For all series identified as belonging to "Group 1", the amounts
allocated to the tranches of Notes of those series (other than any tranche
of RSP Notes) pursuant to clause
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(b) (i) will be reaggregated into a single pool, and reallocated to the
Interest Funding sub-Account for each series, class or tranche of Notes in
Group 1 pro rata based on the amount of the deposit targeted to be made to
the applicable Interest Funding sub-Accounts pursuant to Section 503.
(iii) For all series identified as belonging to another group, the
reallocation of amounts allocated pursuant to clause (b)(i) will be based
on a rule for that group set forth in the applicable terms document.
(c) Other Funds not Reallocated. Funds deposited into any Interest
Funding sub-Account pursuant to Sections 502(a), 504, 506 and 523(i)(ii)
and funds on deposit from prior Due Periods will not be reallocated to any
other Interest Funding sub-Account.
SECTION 506. Deposit of Principal Funding sub-Account Earnings in
Interest Funding sub-Accounts; Principal Funding sub-Account Earnings Shortfall.
(a) As of the end of each Due Period, the Issuer will calculate
(i) the Principal Funding sub-Account Earnings Target for each tranche
of Notes (other than any tranche of RSP Notes),
(ii) the Principal Funding sub-Account Earnings for each tranche of
Notes (other than any tranche of RSP Notes), and
(iii) the Principal Funding sub-Account Earnings Shortfall (if any)
for the Principal Funding sub-Account for each tranche of Notes (other than
any tranche of RSP Notes)
for the period from the Interest Deposit Date in that Due Period (or with
respect to the first Interest Deposit Date with respect to that tranche, the
date of issuance of that tranche) to the first Interest Deposit Date after the
end of that Due Period (for purposes of this Section, a "monthly period").
(b) If there is any Principal Funding sub-Account Earnings Shortfall for
any Principal Funding sub-Account for that monthly period, or any unpaid
Principal Funding sub-Account Earnings Shortfall for any Principal Funding sub-
Account from any earlier monthly period, in each case for any tranche of Notes
other than a tranche of RSP Notes, the Issuer will notify the Master Trust
pursuant to Section 5.03 of the Series 2000 Supplement of that amount.
(c) On each Interest Deposit Date, the Trustee will deposit or cause to be
deposited into each applicable Interest Funding sub-Account the following
amounts:
(i) the Principal Funding sub-Account Earnings for the related
Principal Funding sub-Account for that monthly period, and
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(ii) with respect to any tranche of Notes other than a tranche of RSP
Notes, the amount received by the Issuer pursuant to Section 5.03 of the
Series 2000 Supplement with respect to that Principal Funding sub-Account,
if any.
(d) If the amount of Principal Funding sub-Account Earnings for any tranche
of Notes (other than any tranche of RSP Notes) for any Due Period is greater
than the Principal Funding sub-Account Earnings Target for that Due Period, the
amount of the excess will be treated as Finance Charge Collections pursuant to
Section 501(2) or as otherwise provided in the applicable terms document.
SECTION 507. Withdrawals from Interest Funding Account. Withdrawals made
pursuant to this Section with respect to any tranche of Notes will be made from
the Interest Funding sub-Account established for that tranche only after all
allocations and reallocations have been made pursuant to Sections 503, 504, 505
and 506, but in no event more than the amount on deposit in the applicable
Interest Funding sub-Account. A single tranche of Notes may be entitled to more
than one of the following withdrawals in any month.
(a) Withdrawals for Dollar Notes with no Derivative Agreement for
Interest. On each applicable Interest Payment Date (or as much earlier as
specified in the applicable terms document) with respect to each tranche of
Dollar Notes with no Derivative Agreement for interest, an amount equal to
the interest due on the applicable tranche of Notes on the applicable
Interest Payment Date (including any overdue interest with respect to prior
Interest Payment Dates) will be withdrawn from that Interest Funding sub-
Account and remitted to the applicable Paying Agent or as otherwise
provided in the applicable terms document.
(b) Withdrawals for Discount Notes. On each applicable Monthly
Principal Date, with respect to each tranche of Discount Notes, an amount
equal to the amount of the accretion of principal of that tranche of Notes
from the prior Monthly Principal Date (or in the case of the first Monthly
Principal Date the date of issuance of that tranche) to the applicable
Monthly Principal Date (plus any accretions of principal from prior Due
Periods for which no withdrawal was made) will be withdrawn from that
Interest Funding sub-Account and invested in the Collateral Certificate
pursuant to Section 520(a).
(c) Withdrawals for Notes with Performing Derivative Agreements for
Interest. On each date on which a payment is required under the applicable
Derivative Agreement (or as much earlier as specified in the applicable
terms document) with respect to any tranche of Notes which has a Performing
Derivative Agreement for interest, an amount equal to the amount of the
payment to be made under the applicable Derivative Agreement (including any
overdue payment) will be withdrawn from that Interest Funding sub-Account
and paid to the applicable Derivative Counterparty or as otherwise provided
in the applicable terms document.
(d) Withdrawals for Notes with non-Performing Derivative Agreements
for Interest in Dollars. On each Interest Payment Date (or as much earlier
as specified in the
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applicable terms document) with respect to a tranche of Dollar Notes that
has a non-Performing Derivative Agreement for interest, an amount equal to
the amount of interest payable on that Interest Payment Date (including any
overdue interest with respect to prior Interest Payment Dates) will be
withdrawn from that Interest Funding sub-Account and remitted to the
applicable Paying Agent or as otherwise provided in the applicable terms
document.
(e) Withdrawals for Notes with non-Performing Derivative Agreements
for Foreign Currency Interest. On each Interest Payment Date with respect
to a tranche of foreign currency Notes that has a non-Performing Derivative
Agreement for interest (or as much earlier as specified in the applicable
terms document), an amount equal to the lesser of (i) the amount of Dollars
necessary to be converted at the applicable Spot Exchange Rate to pay the
foreign currency interest due (including any overdue interest with respect
to prior Interest Payment Dates) on that tranche of Notes on the applicable
Interest Payment Date and (ii) the amount that would have been payable to
the applicable Derivative Counterparty with respect to that Interest
Payment Date if the applicable Derivative Agreement had been Performing
(including any overdue payments) will be withdrawn from that sub-Account
and converted to the applicable foreign currency at the Spot Exchange Rate
and remitted to the applicable Paying Agent. Any excess Dollar amount will
be retained on deposit in the applicable Interest Funding sub-Account
(subject to clause (f)) to be applied to make interest payments on later
Interest Payment Dates.
(f) Treatment as Finance Charge Collections. After payment in full of
any tranche of Notes, any amount remaining on deposit in the applicable
Interest Funding sub-Account will be treated as Finance Charge Collections
pursuant to Section 501(2).
(g) Receivables Sales Proceeds. Receivables Sales Proceeds on deposit
in the Interest Funding sub-Account for any tranche of RSP Notes may be
withdrawn on any Interest Payment Date (after giving effect to any payment
of interest on that tranche on that date) to reimburse the Receivables
Sales Proceeds Deposit Deficit of that tranche pursuant to Section 527(g).
If the aggregate amount available for withdrawal from an Interest Funding
sub-Account for any tranche of Notes is less than all withdrawals required to be
made from that Interest Funding sub-Account for that tranche in a month, then
the amounts on deposit will be withdrawn and, if payable to more than one
Person, applied pro rata based on the amounts of the withdrawals required to be
made.
SECTION 508. Targeted Deposits of Principal Collections to the Principal
Funding Account. Unless otherwise specified in the applicable terms document,
the amount of the deposit targeted for any tranche of Notes (other than any
tranche of RSP Notes) with respect to any Due Period to be deposited into the
Principal Funding sub-Account for that tranche will be the sum of (i) the amount
determined pursuant to clause (a), (b), (c) or (d) with respect to such tranche
for such Due Period, as applicable, or if more than one such clause is
applicable, the highest amount determined pursuant to any one of such clauses,
and (ii) any deposit targeted pursuant to clause
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(i) with respect to such tranche for any prior Due Period but for which the full
targeted deposit was not made, but in no case more than the Nominal Liquidation
Amount of such tranche (computed immediately before giving effect to such
deposit).
(a) Expected Principal Payment Date. With respect to the Due Period
immediately preceding the Expected Principal Payment Date of a tranche of
Notes, and each Due Period thereafter, the deposit targeted for that
tranche of Notes is equal to the Nominal Liquidation Amount of that tranche
of Notes as of such Expected Principal Payment Date or the following
Monthly Principal Date, as the case may be. Unless an earlier date is
determined pursuant to Section 522, these deposits will be made on the
applicable Expected Principal Payment Date and each following Monthly
Principal Date.
(b) Budgeted Deposits. (i) Subject to Section 508(d), with respect to
each Due Period, beginning with the twelfth full Due Period before the
Expected Principal Payment Date of a tranche of Class A Notes but excluding
the final Due Period before the Expected Principal Payment Date of that
tranche of Class A Notes, the deposit targeted to be made into the
Principal Funding sub-Account for that tranche will be the Controlled
Accumulation Amount for that tranche specified in the applicable terms
document, or if no amount is specified equal to one-eleventh, in the case
of a Single Issuance Series, or one-twelfth, in the case of a Multiple
Issuance Series, of the projected Outstanding Dollar Principal Amount of
that tranche of Notes as of its Expected Principal Payment Date after
deducting any amounts already on deposit in the applicable Principal
Funding sub-Account. Subject to clause (ii) and unless an earlier date is
determined pursuant to Section 522, these deposits will be made on the
Monthly Principal Date next following the end of that Due Period.
(ii) Notwithstanding anything to the contrary in clause (i), and
unless an earlier date is determined pursuant to Section 522, the Issuer
may postpone the date of the targeted deposits under clause (i) under the
following circumstances:
(A) Immediately before the twelfth full Due Period before the
Expected Principal Payment Date for every Class A Note, the Issuer
will calculate the minimum monthly principal expected to be paid to
all Investor Certificates (including the Collateral Certificate)
issued by the Master Trust.
(B) This calculation will be made by multiplying the lowest of
the monthly principal payment rates for Principal Receivables during
the twelve months preceding the date of calculation by the sum of (1)
the aggregate Series Adjusted Invested Amount (as defined in each
applicable supplement to the Pooling and Servicing Agreement) of each
series of Investor Certificates (other than the Collateral Certificate
or any series that by its terms is an "excluded series" as specified
in the applicable supplement to the Pooling and Servicing Agreement)
and (2) the Series 2000 Adjusted Invested Amount (as defined in the
Series 2000 Supplement) of the Collateral Certificate less the Nominal
Liquidation Amount of
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any Notes to the extent that such Notes constitute an Excluded Series
pursuant to Section 1112.
(C) Using the minimum monthly principal amount expected to be
paid on Principal Receivables, the Issuer will next compare that
amount to the Invested Amounts of all Investor Certificates (including
the Collateral Certificate, but excluding any Certificates
representing Excluded Master Trust Series or series that are partially
Excluded Master Trust Series, to the extent of that exclusion) with
their expected maturity dates and the Outstanding Dollar Principal
Amounts of all tranches of Notes with Expected Principal Payment Dates
in the eleven or twelve, as applicable, Due Periods preceding the
Expected Principal Payment Date of the tranche of Class A Notes for
which the calculation is being performed. If the comparison reveals
that the date of the targeted deposits can be postponed for that
tranche of Class A Notes (with a corresponding increase in the amount
of each deposit targeted) and the Issuer expects to receive Principal
Collections adequate to repay that tranche of Class A Notes in full on
its Expected Principal Payment Date, then the Issuer may designate a
later Due Period (and correspondingly increased Controlled
Accumulation Amount) with respect to which deposits to the Principal
Funding sub-Account for that tranche of Class A Notes will begin. The
comparison made will assume that the dates required for collection of
Principal Collections are postponed to the maximum extent permitted by
all Investor Certificates and tranches of Notes.
(c) Prefunding of the Principal Funding Account of Senior Classes. If
the Issuer determines as of the end of any Due Period with respect to any
Class A Notes or Class B Notes of a series that, after giving effect to all
allocations and payments with respect to that Due Period, the Prefunding
Target Amount of that class is greater than zero, the targeted deposit to
the Principal Funding sub-Accounts for the affected classes of that series
will be the Prefunding Target Amount for that series. Unless an earlier
date is determined pursuant to Section 522, these deposits will be made on
the Monthly Principal Date applicable to the Class A Notes or the Class B
Notes, as the case may be, next following the end of that Due Period.
(d) Event of Default, Early Redemption Event, Other Optional or
Mandatory Redemption. If any tranche of Notes has been accelerated during a
Due Period after the occurrence of an Event of Default, or if an Early
Redemption Event with respect to any tranche of Notes occurs during such
Due Period, or with respect to the Due Period immediately preceding any
other date fixed for any other mandatory or optional redemption of any
tranche of Notes, the deposit targeted for that tranche of Notes with
respect to that Due Period and each following Due Period is equal to
Nominal Liquidation Amount of that tranche of Notes as of the Monthly
Principal Date occurring immediately after that Due Period. Unless an
earlier date is determined pursuant to Section 522, these deposits will be
made on the Monthly Principal Date next following the end of that Due
Period.
62
SECTION 509. Payments Received from Derivative Counterparties for
Principal; Other Deposits to Principal Funding Accounts. The following
additional amounts will be deposited into the Principal Funding Account on the
following dates:
(a) Payments Received from Derivative Counterparties. Payments
received under Derivative Agreements for principal in Dollars for any
tranche of Notes will be deposited into the applicable Principal Funding
sub-Account on the date of receipt. Payments received under Derivative
Agreements for principal in foreign currencies for any tranche of Notes
will be made directly to the applicable Paying Agent for payment to the
Holders of the applicable tranche of Notes, or as otherwise specified in
the applicable Derivative Agreement.
(b) Class C Reserve Account. Withdrawals made from any Class C Reserve
sub-Account pursuant to Section 519(b) will be deposited into the
applicable Principal Funding sub-Account on the date specified in Section
519(b).
(c) Receivables Sale Proceeds. Receivables Sales Proceeds received
pursuant to Section 523(i)(i) for any tranche of RSP Notes will be
deposited into the applicable Principal Funding sub-Account on the date of
receipt by the Issuer.
(d) Reimbursements of Receivable Sales Proceeds Deposit Deficits. Any
amounts relating to reimbursements of Receivables Sales Proceeds Deposit
Deficits with respect to any tranche of RSP Notes pursuant to Section 527
hereof and pursuant to Section 4.03(b), (c) or (d) of the Series 2000
Supplement will be deposited into the applicable Principal Funding sub-
Account on each Monthly Principal Date, or in months with a Principal
Payment Date, on the preceding Business Day.
SECTION 510. Reallocations of Funds on Deposit in the Principal Funding
sub-Accounts. The aggregate amount of the deposits to be made to the Principal
Funding Account for each tranche of Notes (other than any tranche of RSP Notes)
pursuant to Section 508 for each Due Period will be allocated, and a portion
deposited in the Principal Funding sub-Account for each tranche of Notes, as
follows:
(a) Principal Collections Equal to Targeted Amount. If the aggregate
deposit of Principal Collections to the Principal Funding Account is equal
to the sum of the deposits of Principal Collections targeted by each
tranche of Notes, then that targeted amount is deposited in the Principal
Funding sub-Account established for each tranche.
(b) Principal Collections Are Less Than Targeted Amounts. (i) Subject
to clause (d), if the amount of Principal Collections on deposit in any
Principal Funding sub-Account for a tranche of Class A Notes of a series is
less than the sum of the deposits of Principal Collections targeted with
respect to that tranche (other than amounts targeted for deposit with
respect to an optional redemption of that tranche, to the extent specified
in the applicable terms document) pursuant to Section 508, then amounts on
deposit in Principal Funding sub-Accounts of Class B Notes and Class C
Notes of that series will be
63
reallocated to the Class A Principal Funding sub-Account for that tranche
of Class A Notes, to be reallocated first from the Class C Principal
Funding sub-Accounts in that series and second from Class B Principal
Funding sub-Accounts in that series. If more than one tranche of Class A
Notes requires a reallocation of amounts on deposit in the Principal
Funding sub-Accounts of the Class B Notes and the Class C Notes of that
series, then the reallocated amounts will be deposited in the Principal
Funding sub-Account for each such tranche of Class A Notes of that series
pro rata based on the ratio of (A) the Nominal Liquidation Amount of such
tranche of Class A Notes, to (B) the aggregate Nominal Liquidation Amounts
of all tranches of Class A Notes of that series that require such
reallocations, in each case calculated immediately before giving effect to
such reallocations (but not more than the amount of the deposit targeted
for such tranche, with any excess to be reallocated among the other
tranches of Class A Notes of that series that require reallocations pro
rata based on the Nominal Liquidation Amount of those tranches).
(ii) After giving effect to clause (b)(i), and subject to clause (d),
if the amount on deposit in any applicable Principal Funding sub-Account
for a tranche of Class B Notes of a series is less than the sum of the
deposits targeted pursuant to Section 508 with respect to that tranche
(other than amounts targeted for deposit with respect to an optional
redemption of that tranche, to the extent specified in the applicable terms
document), then amounts on deposit in Principal Funding sub-Accounts of
Class C Notes of that series will be reallocated to the Principal Funding
sub-Account for that tranche of Class B Notes. If more than one tranche of
Class B Notes requires a reallocation of amounts on deposit in the
Principal Funding sub-Account for the Class C Notes of that series, then
the reallocated amounts will be deposited in the Principal Funding sub-
Account for each such tranche of Class B Notes of that series pro rata
based on the ratio of (A) the Nominal Liquidation of such tranche of Class
B Notes, to (B) the aggregate Nominal Liquidation Amounts of all tranches
of Class B Notes of that series that require such reallocations, in each
case as calculated immediately before giving effect to such reallocation
(but not more than the amount of the deposit targeted for such tranche,
with any excess to be reallocated among the other tranches of Class B Notes
of that series that require reallocations pro rata based on the Nominal
Liquidation Amount of those tranches).
(c) Limitations on Reallocations of Principal Collections. (i) If the
Nominal Liquidation Amount of any tranche of Notes of a subordinated class
of a series has been reduced pursuant to clauses (b)(v) and (b)(vi) of the
definition of Nominal Liquidation Amount and then reimbursed in whole or in
part pursuant to clause (b)(iv) of the definition of Nominal Liquidation
Amount, the maximum amount that may be reallocated from the Principal
Funding sub-Account for that tranche to the Principal Funding sub-Accounts
of any senior class of that series that was Outstanding before the date of
such reduction in the Nominal Liquidation Amount is equal to the
Outstanding Dollar Principal Amount of such tranche of Notes of the
subordinated class, less the cumulative amount of such reductions since the
dates that senior class was issued.
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(ii) If amounts on deposit in the Principal Funding sub-Account for
more than one tranche of Notes of a subordinated class of a series is
required to be reallocated pursuant to clauses (b)(i) or (b)(ii), amounts
will be withdrawn from the Principal Funding sub-Account for each such
tranche of subordinated Notes pro rata based on the ratio of the Nominal
Liquidation Amount of that tranche of Notes to the aggregate Nominal
Liquidation Amount of all Notes of that class of that series; provided,
however, that if any Nominal Liquidation Amount Deficit of that tranche has
been reimbursed in whole or in part pursuant to clause (b)(iv) of the
definition of Nominal Liquidation Amount, for purposes of calculating that
ratio for allocating withdrawals of funds deposited into the Principal
Funding sub-Account for senior classes of Notes of that series that were
Outstanding before the date of such reduction in the Nominal Liquidation
Amount, the Nominal Liquidation Amount as used in that ratio will be
calculated without giving effect to such reimbursements.
(d) Receivables Sales Proceeds. Receivables Sales Proceeds on deposit
in the Principal Funding sub-Account for any tranche of Notes (i) will not
be reallocated to the Principal Funding sub-Account for any senior class of
Notes, and (ii) will be reallocated to be treated as Finance Charge
Collections pursuant to, and only to the extent permitted by, Section 513.
(e) Reallocation of Other Funds. Funds deposited into any Principal
Funding sub-Account pursuant to Sections 509(a) and (b) will not be
reallocated to any other Principal Funding sub-Account pursuant to this
Section.
SECTION 511. Withdrawals from Principal Funding Account. Withdrawals
made pursuant to this Section with respect to any tranche of Notes will be
made from the Principal Funding sub-Accounts established for that tranche
only after all allocations and reallocations have been made pursuant to
Sections 508, 509 and 510, and reallocated on the same basis until those
funds are fully applied. In no event will the amount of the withdrawal be
more than the amount on deposit in the applicable Principal Funding
sub-Account. A single tranche may be entitled to more than one of the
following withdrawals with respect to any Due Period.
(a) Withdrawals for Dollar Notes with no Derivative Agreement for
Principal. On each applicable Principal Payment Date (or as much earlier as
specified in the applicable terms document) with respect to each tranche of
Dollar Notes which has no Derivative Agreement for principal, an amount
equal to the principal due on the applicable tranche of Notes on the
applicable Principal Payment Date will be withdrawn from that Principal
Funding sub-Account and remitted to the applicable Paying Agent or as
otherwise provided by the applicable terms document.
(b) Withdrawals for Notes with Performing Derivative Agreements for
Principal. On each date on which a payment is to be made under the
applicable Derivative Agreement (or as much earlier as specified in the
applicable terms document) with respect to any tranche of Notes which has a
Performing Derivative Agreement for principal, an
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amount equal to the amount of the payment to be made under the applicable
Derivative Agreement will be withdrawn from that Principal Funding sub-
Account and paid to the applicable Derivative Counterparty or as otherwise
provided by the applicable terms document. The Issuer will direct the
applicable Derivative Counterparty to remit its payments under the
applicable Derivative Agreement to the applicable Paying Agent or as
otherwise provided by the applicable terms document.
(c) Withdrawals for Foreign Currency Notes with non-Performing
Derivative Agreements for Principal. On each Principal Payment Date with
respect to a tranche of foreign currency Notes that has a non-Performing
Derivative Agreement for principal (or as much earlier as specified in the
applicable terms document), an amount equal to the amount of Dollars
necessary to be converted at the applicable Spot Exchange Rate to pay the
foreign currency principal due on that tranche of Notes on the applicable
Principal Payment Date will be withdrawn from that sub-Account and
converted to the applicable foreign currency at the Spot Exchange Rate and
remitted to the applicable Paying Agent.
(d) Withdrawal of Prefunding Excess Amount. If the Issuer on any date
determines as of the end of any Due Period with respect to any class of
Class A Notes or Class B Notes of a series that, without giving effect to
all allocations and payments with respect to that Due Period, the
Prefunding Excess Amount of that class is greater than zero, that amount
will be withdrawn from the Principal Funding sub-Account of that class of
Notes and treated as Principal Collections pursuant to Section 502. Such
withdrawals will be allocated among the Principal Funding sub-Account of
the tranches of Notes of that class so that, after giving effect thereto,
no such Principal Funding sub-Account will have an amount on deposit less
than the amount then targeted to be on deposit in such Principal Funding
sub-Account.
(e) Withdrawal of Receivables Sales Proceeds Deposit Amounts.
Receivables Sales Proceeds Deposit Amounts reallocated pursuant to Section
502(a) (subject to Section 514) will be withdrawn from the applicable
Principal Funding sub-Account on the applicable Monthly Interest Date.
Receivables Sales Proceeds Deposit Amounts payable to the Master Trust
pursuant to Section 526(e)(ii) will be withdrawn from the applicable
Principal Funding sub-Account as soon as practicable after determination of
the amount to be withdrawn and paid to the Master Trust as provided in
Section 526.
(f) Treatment as Finance Charge Collections. Upon payment in full of
any tranche of Notes, any remaining amount on deposit in the applicable
Principal Funding sub-Account will be treated as Finance Charge Collections
pursuant to Section 501(2).
SECTION 512. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to Benefit Senior Classes of
Single Issuance Series. With respect to Single Issuance Series for any Due
Period, the aggregate amount of Principal Collections and Receivables Sales
Proceeds Deposit Amounts reallocated pursuant to Section 502(a) to make deposits
pursuant to Section 501(b) will be subject to the following limitations:
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(a) With respect to Class A Notes of a Single Issuance Series, the
aggregate amount of:
(i) all reallocations of Principal Collections that were
deposited into the Interest Funding sub-Account of Class A Notes or
Class B Notes of that series pursuant to Section 502(a), to the extent
such reallocation resulted in the reduction of the Nominal Liquidation
Amount of Class C Notes of that series;
(ii) all reallocations of Receivables Sales Proceeds Deposit
Amounts that were deposited into the Interest Funding sub-Account of
Class A Notes or Class B Notes of that series pursuant to Section
502(a), to the extent such reallocations resulted in the reduction of
the Receivables Sales Proceeds Deposit Amount of Class C Notes of that
series;
(iii) all reductions to the Nominal Liquidation Amount of the
Class C Notes of that series from allocations of Investor Charge-Offs
pursuant to Section 526; and
(iv) all reductions to the Receivables Sales Proceeds Deposit
Amount of the Class C Notes of that series from allocations of
Investor Charge-Offs pursuant to Section 526;
67
may not exceed the Outstanding Dollar Principal Amount of Class C Notes for
that series.
(b) With respect to Class A Notes of a Single Issuance Series, the
aggregate amount of:
(i) all reallocations of Principal Collections that were
deposited into the Interest Funding sub-Account of Class A Notes of
that series pursuant to Section 502(a), to the extent such
reallocation resulted in the reduction of the Nominal Liquidation
Amount of Class B Notes of that series;
(ii) all reallocations of Receivables Sales Proceeds Deposit
Amounts that were deposited into the Interest Funding sub-Account of
Class A Notes of that series pursuant to Section 502(a), to the extent
such reallocations resulted in the reduction of the Receivables Sales
Proceeds Deposit Amount of Class B Notes of that series;
(iii) all reductions to the Nominal Liquidation Amount of the
Class B Notes of that series from allocations of Investor Charge-Offs
pursuant to Section 526; and
(iv) all reductions to the Receivables Sales Proceeds Deposit
Amount of the Class B Notes of that series from allocations of
Investor Charge-Offs pursuant to Section 526;
may not exceed the Outstanding Dollar Principal Amount of Class B Notes for
that series.
(c) With respect to Class B Notes of a Single Issuance Series, the
aggregate amount of:
(i) all reallocations of Principal Collections that were
deposited into the Interest Funding sub-Account of Class A Notes or
Class B Notes of that series pursuant to Section 502(a), to the extent
such reallocation resulted in the reduction of the Nominal Liquidation
Amount of Class C Notes of that series;
(ii) all reallocations of Receivables Sales Proceeds Deposit
Amounts that were deposited into the Interest Funding sub-Account of
Class A Notes or Class B Notes of that series pursuant to Section
502(a), to the extent such reallocations resulted in the reduction of
the Receivables Sales Proceeds Deposit Amount of Class C Notes of that
series;
(iii) all reductions to the Nominal Liquidation Amount of the
Class C Notes of that series from allocations of Investor Charge-Offs
pursuant to Section 526; and
(iv) all reductions to the Receivables Sales Proceeds Deposit
Amounts of the Class C Notes of that series from allocations of
Investor Charge-Offs pursuant to Section 526;
may not exceed the Outstanding Dollar Principal Amount of Class C Notes for
that series.
SECTION 513. Limit on Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts Taken to Benefit Senior Classes of
Multiple Issuance Series. With respect to Multiple Issuance Series for any Due
Period, the aggregate amount of the Principal Collections and Receivables Sales
Proceeds Deposit Amounts reallocated pursuant to Section 502(a) to make deposits
pursuant to Section 501(b) will be subject to the following limitations:
(a) Limit on Reallocations to a tranche of Class A Notes from Class C
Notes. Principal Collections, the reallocation of which results in the
reduction of the Nominal Liquidation Amount of the Class C Notes of a
series pursuant to Section 514, and the Receivables Sales Proceeds Deposit
Amount of any tranche of Class C Notes of that series, may be reallocated
pursuant to Section 502(a) to make deposits into the Interest Funding sub-
Account for a tranche of Class A Notes of that series only to the extent,
after giving effect to those deposits, that the sum of the following
amounts (such sum being the "Class A Usage of Class C Required Subordinated
Amount") is not greater than the Class A Required Subordinated Amount of
Class C Notes for that tranche of Class A Notes:
(i) the cumulative sum of all Investor Charge-Offs initially
allocated to that tranche of Class A Notes pursuant to Section 526(a),
and then reallocated to Class C Notes of that series pursuant to
Section 526(b);
68
(ii) the cumulative sum of all amounts determined pursuant to the
following formula, computed on each date while that tranche of Class A
Notes is Outstanding and there is an allocation of Investor Charge-
Offs to any tranche of Class B Notes of that series pursuant to
Section 526(a):
Class A Required Subordinated
Amount of Class B Notes for that amount of Investor Charge-Offs initially allocated to
tranche of Class A Notes Class B Notes of that series pursuant to Section 526(a),
---------------------------------- x and then reallocated to Class C Notes of that series
aggregate Outstanding Dollar pursuant to Section 526(b) on that date
Principal Amount of all Class B
Notes of that series
(but not more than the amount of such reallocated Investor Charge-
Offs);
(iii) the cumulative sum of all amounts determined pursuant to
the following formula, computed on each date while that tranche of
Class A Notes is Outstanding and there is an allocation of Investor
Charge-Offs to any tranche of Class C Notes of that series pursuant to
Section 526(a):
Class A Required Subordinated
Amount of Class C Notes for that
tranche of Class A Notes amount of Investor Charge-Offs initially allocated to
---------------------------------- x Class C Notes of that series pursuant to Section 526(a)
aggregate Outstanding Dollar on that date
Principal Amount of all Class C
Notes of that series
(but not more than the amount of such Investor Charge-Offs);
(iv) the cumulative sum of all Principal Collections and all
Receivables Sales Proceeds Deposit Amounts reallocated to the Interest
Funding sub-Account for that tranche of Class A Notes pursuant to
Section 502(a) and deposited with respect to prior Due Periods and
that Due Period that resulted in a reduction of the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of a
tranche of Class C Notes of that series; and
(v) the cumulative sum of all amounts determined pursuant to the
following formula, computed on each date while that tranche of Class A
Notes is Outstanding, and (A) Principal Collections are reallocated to
the Interest Funding sub-Account for any tranche of Class B Notes of
that series pursuant to Section 502(a), and that reallocation reduces
the Nominal Liquidation Amount of any tranche of Class C Notes of that
series, or (B) any Receivables Sales Proceeds Deposit Amount that is
reallocated from the Principal Funding sub-Account for any tranche of
Class C Notes of that series to the Interest Funding sub-Account for
any tranche of Class B Notes of that series pursuant to Section
502(a):
69
Class A Required Subordinated Amount (a) amount of Principal Collections reallocated to the
of Class B Notes for that tranche of Interest Funding sub-Account for any tranche of Class
Class A Notes B Notes of that series pursuant to Section 502(a) that
---------------------------------------- x reduces the Nominal Liquidation Amount of any
aggregate Outstanding Dollar Principal tranche of Class C Notes of that series, and (b) amount
Amount of all Class B Notes of that of Receivables Sales Proceeds Deposit Amount
series reallocated from the Principal Funding sub-Account
for any tranche of Class C Notes of that series to the
Interest Funding sub-Account for any tranche of Class
B Notes of that series pursuant to Section 502(a)
(but not more than the amount of such reallocated Investor Charge-
Offs).
(b) Limit on Reallocations to a tranche of Class A Notes from Class B
Notes. Principal Collections, the reallocation of which results in the
reduction of the Nominal Liquidation Amount of the Class B Notes of a
series pursuant to Section 514, and the Receivables Sales Proceeds Deposit
Amount of any tranche of Class B Notes of that series, may be reallocated
pursuant to Section 502(a) to make deposits into the Interest Funding sub-
Account for a tranche of Class A Notes of that series only to the extent,
after giving effect to those deposits, that the sum of the following
amounts (such sum being the "Class A Usage of Class B Required Subordinated
Amount") is not greater than the Class A Required Subordinated Amount of
Class B Notes for that tranche of Class A Notes:
(i) the cumulative sum of all Investor Charge-Offs initially
allocated to that tranche of Class A Notes pursuant to Section 526(a),
and then reallocated to Class B Notes of that series pursuant to
Section 526(b);
(ii) the cumulative sum of all amounts determined pursuant to the
following formula, computed on each date while that tranche of Class A
Notes is Outstanding and there is an allocation of Investor Charge-
Offs to any tranche of Class B Notes of that series pursuant to
Section 526(a):
Class A Required Subordinated
Amount of Class B Notes for amount of Investor Charge-Offs initially allocated
that tranche of Class A Notes to Class B Notes of that series pursuant to Section
--------------------------------- x 526(a), and not then reallocated to Class C Notes
aggregate Outstanding Dollar of that series pursuant to Section 526(b)
Principal Amount of all Class B
Notes of that series
(but not more than the amount of such unreallocated Investor Charge-
Offs); and
(iii) the cumulative sum of all Principal Collections and all
Receivables Sales Proceeds Deposit Amounts reallocated to the Interest
Funding sub-Account for that tranche of Class A Notes pursuant to
Section 502(a) and deposited with respect to prior Due Periods and
that Due Period that resulted in a reduction of the
70
Nominal Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of a tranche of Class B Notes of that series.
(c) Limit on Reallocations to a tranche of Class B Notes from Class C
Notes. Principal Collections, the reallocation of which results in the
reduction of the Nominal Liquidation Amount of the Class C Notes of a
series pursuant to Section 514, and the Receivables Sales Proceeds Deposit
Amount of any tranche of Class C Notes of that series, may be reallocated
pursuant to Section 502(a) to make deposits into the Interest Funding sub-
Account for a tranche of Class B Notes of that series only to the extent,
after giving effect to those deposits, that the sum of the following
amounts (such sum being the "Class B Usage of Class C Required Subordinated
Amount") is not greater than the Class B Required Subordinated Amount of
Class C Notes for that tranche of Class B Notes:
(i) the cumulative sum of all amounts determined pursuant to the
following formula, computed on each date while that tranche of Class B
Notes is Outstanding and there is an allocation of Investor Charge-
Offs to any tranche of Class A Notes of that series pursuant to
Section 526(a):
the Class B Required
Subordinated Amount of
Class C Notes for that amount of Investor Charge Offs initially allocated to
tranche of Class B Notes Class A Notes of that series pursuant to Section 526(a),
--------------------------------------- x and then reallocated to Class C Notes of that series
aggregate Outstanding Dollar Principal pursuant to Section 526(b) on that date
Amount of all Class C Notes of that
series
(but not more than the amount of such reallocated Investor Charge-
Offs);
(ii) the cumulative sum of all amounts determined pursuant to the
following formula, computed on each date while that tranche of Class B
Notes is Outstanding and there is an allocation of Investor Charge-
Offs to any tranche of Class C Notes of that series pursuant to
Section 526(a):
Class B Required Subordinated amount of Investor Charge-Offs initially allocated to
Amount of Class C Notes for that Class C Notes of that series pursuant to Section 526(a)
tranche of Class B Notes on that date
--------------------------------------- x
aggregate Outstanding Dollar
Principal Amount of all Class C
Notes of that series
(but not more than the amount of such Investor Charge-Offs);
(iii) the cumulative sum of all Investor Charge-Offs initially
allocated to that tranche of Class B Notes pursuant to Section 526(a),
and then reallocated to Class C Notes of that series pursuant to
Section 526(b);
71
(iv) the cumulative sum of all Principal Collections and all
Receivables Sales Proceeds Deposit Amounts reallocated to the Interest
Funding sub-Account for that tranche of Class B Notes pursuant to
Section 502(a) and deposited with respect to prior Due Periods and
that Due Period that resulted in a reduction of the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of a
tranche of Class C Notes of that series; and
(v) the cumulative sum of all amounts determined pursuant to the
following formula, computed on each date while that tranche of Class B
Notes is Outstanding, and (A) Principal Collections are reallocated to
the Interest Funding sub-Account for any tranche of Class A Notes of
that series pursuant to Section 502(a), and that reallocation reduces
the Nominal Liquidation Amount of any tranche of Class C Notes of that
series, or (B) any Receivables Sales Proceeds Deposit Amount that is
reallocated from the Principal Funding sub-Account for any tranche of
Class C Notes of that series to the Interest Funding sub-Account for
any tranche of Class A Notes of that series pursuant to Section
502(a):
the Outstanding (a) amount of Principal Collections reallocated to the
Dollar Principal Amount Interest Funding sub-Account for any tranche of Class
of that tranche of Class B Notes A Notes of that series pursuant to Section 502(a) that
---------------------------------- x reduces the Nominal Liquidation Amount of any
aggregate Outstanding Dollar Principal tranche of Class C Notes of that series, and (b) amount
Amount of all Class B Notes of that of Receivables Sales Proceeds Deposit Amount
series reallocated from the Principal Funding sub-Account
for any tranche of Class C Notes of that series to the
Interest Funding sub-Account for any tranche of Class
A Notes of that series
SECTION 514. Computation of Amount of Reallocations of Principal
Collections and Receivables Sales Proceeds Deposit Amounts Taken from
Subordinated Classes; Allocations of Reductions to the Nominal Liquidation
Amount of Subordinated Classes from Reallocations of Principal Collections and
Receivables Sales Proceeds Deposit Amounts. The aggregate amount of Principal
Collections and Receivables Sales Proceeds Deposit Amounts that may be
reallocated pursuant to Section 502(a) with respect to any Due Period with
respect to any series of Notes will be equal to the lesser of (1) the largest
amount that will not result in a violation of Section 512 or 513, as the case
may be, and (2) the largest amount that may be reallocated to result in the
reduction of the Nominal Liquidation Amount or Receivables Sales Proceeds
Deposit Amount of the subordinated classes of Notes of that series that will not
result in a violation of this Section.
(a) Each reallocation of Principal Collections and Receivables Sales
Proceeds Deposit Amounts deposited to the Interest Funding sub-Account of a
senior class of a series pursuant to Section 502(a) will reduce the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of each
tranche of Class C Notes of that series pro rata based on the ratio of (1)
the Nominal Liquidation Amount and Receivables Sales Proceeds Deposit
Amount of such tranche of Class C Notes of that series to (2) the
72
aggregate Nominal Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of all tranches of Class C Notes of that series; provided, however,
that
(i) amounts reallocated to the Interest Funding sub-Account for
Class A Notes and Class B Notes of a series will be treated pro rata
under this clause (a) based on the amounts reallocated;
(ii) in the case of any tranche of Class A Notes or Class B Notes
that was Outstanding before the date of any reimbursement of a
reduction of the Nominal Liquidation Amount or Receivables Sales
Proceeds Deposit Amount of any tranche of Class C Notes of that series
pursuant to Section 527, for purposes of applying amounts of
reallocations of Principal Collections or Receivables Sales Proceeds
Deposit Amounts deposited into the Interest Funding sub-Account of
that tranche of Class A Notes or Class B Notes, the ratio set forth in
clauses (a)(1) and (a)(2) of this clause will be determined without
regard to that reimbursement;
(iii) any allocation of any such reduction that would otherwise
have reduced the Nominal Liquidation Amount or Receivables Sales
Proceeds Deposit Amount of a tranche of Class C Notes below zero will
be reallocated to the remaining tranches of Class C Notes as set forth
in this clause (a), but in no event will the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of any tranche of
Class C Notes be reduced below zero; and
(iv) any portion of any reallocation of Principal Collections or
Receivables Sales Proceeds Deposit Amounts deposited pursuant to
Section 502(a) that cannot be allocated to the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of Class C Notes
pursuant to this clause (a) will be allocated to the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of
Class B Notes of that series pursuant to clause (b) of this Section to
the extent permitted by clause (b);
(b) Each reallocation of Principal Collections and Receivables Sales
Proceeds Deposit Amounts deposited to the Interest Funding sub-Accounts of
the Class A Notes of a series pursuant to Section 502(a) which does not
result in the reduction of the Nominal Liquidation Amount or Receivables
Sales Proceeds Deposit Amount of Class C Notes of that series will reduce
the Nominal Liquidation Amount or Receivables Sales Proceeds Deposit Amount
of each tranche of Class B Notes of that series pro rata based on the ratio
of (1) the Nominal Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of such tranche of Class B Notes of that series to (2) the aggregate
Nominal Liquidation Amount or Receivables Sales Proceeds Deposit Amount of
all tranches of Class B Notes of that series; provided, however, that
(i) in the case of any tranche of Class A Notes that was
Outstanding before the date of any reimbursement of any reduction of
the Nominal Liquidation Amount or Receivables Sales Proceeds Deposit
Amount of any tranche of Class B
73
Notes of that series pursuant to Section 527, for purposes of applying
amounts of reallocations of Principal Collections or Receivables Sales
Proceeds Deposit Amounts deposited into the Interest Funding sub-
Account of that tranche of Class A Notes, the ratio set forth in
clauses (b)(1) and (b)(2) of this clause will be determined without
regard to that reimbursement;
(ii) any allocation of any such reduction that would otherwise
have reduced the Nominal Liquidation Amount or Receivables Sale
Proceeds Deposit Amount of a tranche of Class B Notes below zero will
be reallocated to the remaining tranches of Class B Notes as set forth
in this clause (b), but in no event will the Nominal Liquidation
Amount or Receivables Sale Proceeds Deposit Amount of any tranche of
Class B Notes be reduced below zero.
SECTION 515. Limit on Repayments of Subordinated Classes of Single
Issuance Series. (a) Subject to clause (b), with respect to Single Issuance
Series,
(i) no funds on deposit in a Principal Funding sub-Account will be
applied to pay principal on any Class B Note or to make a payment under a
Derivative Agreement with respect to principal of any Class B Note (and no
Class B Note will be canceled pursuant to Section 603) unless, immediately
before giving effect to that payment (or cancellation), no Class A Notes of
that series are Outstanding, and
(ii) no funds on deposit in a Principal Funding sub-Account will be
applied to pay principal on any Class C Note or to make a payment under a
Derivative Agreement with respect to principal of any Class C Note (and no
Class C Note will be canceled pursuant to Section 603) unless, immediately
before giving effect to that payment (or cancellation), no Class A Notes or
Class B Notes of that series are Outstanding.
(b) Notwithstanding anything in this Indenture to the contrary, funds on
deposit in the Principal Funding sub-Account of any tranche of Notes of a
subordinated class of a Single Issuance Series may be applied to pay principal
on that tranche or to make a payment under a Derivative Agreement with respect
to principal of that tranche:
(i) on any Principal Payment Date, if and to the extent that such
funds have been deposited into the applicable Principal Funding sub-Account
pursuant to Section 509(a) or (b);
(ii) on any Principal Payment Date, if the Prefunding Target Amount
for each senior class of Notes of that series is zero;
(iii) on any Principal Payment Date, if and to the extent that such
payment is made from funds deposited into such Principal Funding sub-
Account not consisting of Principal Collections or Receivables Sales
Proceeds, including funds deposited pursuant to Section 509(a) or (b);
74
(iv) on the Legal Maturity Date of such tranche, if after giving
effect to any deposits, allocations, reallocations and sales of Receivables
to be made on that date, any amount is on deposit in such Principal Funding
sub-Account; or
(v) to the extent such funds relate to reimbursements of reductions of
the Nominal Liquidation Amount or Receivable Sales Proceeds Deposit Amount
of the applicable tranche of subordinated Notes pursuant to Section 527.
SECTION 516. Limit on Repayments of Subordinated Classes of Multiple
Issuance Series. (a) With respect to Multiple Issuance Series:
(i) Subject to clause (b), no funds on deposit in a Principal Funding
sub-Account will be applied to pay principal on any Class B Note or to make
a payment under a Derivative Agreement with respect to principal of any
Class B Note, and no Class B Note will be canceled pursuant to Section 603,
unless, following that payment or cancellation, the available subordinated
amount of Class B Notes is at least equal to the Required Subordinated
Amount of Class B Notes for the Outstanding Class A Notes. For this
purpose, the available subordinated amount of Class B Notes is equal to the
sum of the following, after giving effect to any issuances, deposits,
allocations or payments to be made on that date:
(A) the aggregate amount of all Nominal Liquidation Amounts of
all Class B Notes of that series which are Outstanding after giving
effect to the repayment or cancellation of those Class B Notes (and
all other Class B Notes which are to be repaid or canceled with
respect to that Due Period),
plus
----
(B) the aggregate amount on deposit in the Principal Funding sub-
Account for all Outstanding tranches of Class B Notes of that series
(other than any Receivables Sales Proceeds Deposit Amounts of tranches
of Class B Notes of that series) after giving effect to the repayment
or cancellation of those Class B Notes (and all other Class B Notes
which are to be repaid or canceled with respect to that Due Period);
plus
----
(C) the aggregate amount of all Class A Usage of Class B Required
Subordinated Amount by any Outstanding tranche of Class A Notes of
that series.
(ii) Subject to clause (b), no funds on deposit in a Principal Funding
sub-Account will be applied to pay principal on any Class C Note or to make
a payment under a Derivative Agreement with respect to principal of any
Class C Note, and no Class C Note will be canceled pursuant to Section 603,
unless, following that payment or cancellation, the available subordinated
amount of Class C Notes is at least equal to the Required
75
Subordinated Amount of Class C Notes for the Outstanding Class A Notes. For
this purpose, the available subordinated amount of Class C Notes is equal
to the sum of the following, after giving effect to any issuances,
deposits, allocations or payments to be made on that date:
(A) the aggregate amount of all Nominal Liquidation Amounts of
all Class C Notes of that series which are Outstanding after giving
effect to the repayment or cancellation of those Class C Notes (and
all other Class C Notes which are to be repaid or canceled with
respect to that Due Period),
plus
----
(B) the aggregate amount on deposit in the Principal Funding sub-
Account for all Outstanding tranches of Class C Notes of that series
(other than any Receivables Sales Proceeds Deposit Amount of tranches
Class C Notes of that series) after giving effect to the repayment or
cancellation of those Class C Notes (and all other Class C Notes which
are to be repaid or canceled with respect to that Due Period);
plus
----
(C) the aggregate amount of all Class A Usage of Class C Required
Subordinated Amount by any Outstanding tranche of Class A Notes of
that series.
(iii) Subject to clause (b), no funds on deposit in a Principal
Funding sub-Account will be applied to pay principal on any Class C Note or
to make a payment under a Derivative Agreement with respect to principal of
any Class C Note, and no Class C Note will be canceled pursuant to Section
603, unless, following that payment or cancellation, the available
subordinated amount of Class C Notes is at least equal to the Required
Subordinated Amount of Class C Notes for the Outstanding Class B Notes. For
this purpose, the available subordinated amount of Class C Notes is equal
to the sum of the following, after giving effect to any issuances,
deposits, allocations or payments to be made on that date:
(A) the aggregate amount of all Nominal Liquidation Amounts of
all Class C Notes of that series which are Outstanding after giving
effect to the repayment or cancellation of those Class C Notes (and
all other Class C Notes which are to be repaid or canceled with
respect to that Due Period),
plus
----
(B) the aggregate on deposit in the Principal Funding sub-Account
for all Outstanding tranches of Class C Notes of that series (other
than any Receivables Sales Proceeds Deposit Amount of Class C Notes of
that series) after giving effect
76
to the repayment or cancellation of those Class C Notes (and all other
Class C Notes which are to be repaid or canceled with respect to that
Due Period);
plus
----
(C) the aggregate amount of all Class B Usage of Class C Required
Subordinated Amount by any Outstanding tranche of Class B Notes of
that series.
(b) Notwithstanding anything in this Indenture to the contrary, amounts on
deposit in the Principal Funding sub-Account of any tranche of Notes of a
subordinated class of a Multiple Issuance Series may be applied to pay principal
of that tranche or to make a payment under a Derivative Agreement with respect
to principal of that tranche:
(i) on any Monthly Principal Date, if and to the extent that such
payment is not contrary to clause (a);
(ii) on any Monthly Principal Date, if the Prefunding Target Amount
for each senior class of Notes of that series is zero;
(iii) on any Monthly Principal Date, if and to the extent that such
payment is made from funds deposited into such Principal Funding sub-
Account not consisting of Principal Collections or Receivables Sales
Proceeds Deposit Amounts, including funds deposited pursuant to Section
509(a) or (b);
(iv) on the Legal Maturity Date of such tranche, if after giving
effect to any deposits, allocations, reallocations, sales of Receivables or
other payments to be made on that date, any amount is on deposit in such
Principal Funding sub-Account.
SECTION 517. Limit on Repayments of all Tranches. No Principal Collections
on deposit in a Principal Funding sub-Account for any tranche of Notes will be
applied to pay principal of that tranche or to make a payment under a Derivative
Agreement with respect to principal of that tranche in excess of the highest
Outstanding Dollar Principal Amount of that tranche minus any
-----
unreimbursed reductions in the Nominal Liquidation Amount of that tranche, plus,
----
in the case of tranches of Class C Notes, the cumulative amount deposited into
the applicable Class C Reserve sub-Account. No Receivables Sales Proceeds
Deposit Amount (or reimbursement of Receivables Sales Proceeds Deposit Deficits)
on deposit in a Principal Funding sub-Account of any tranche of Notes will be
applied to pay principal on that tranche or to make a payment with respect to
principal of that tranche that would result in a payment in excess of the
highest Outstanding Dollar Principal Amount of that tranche.
SECTION 518. Targeted Deposits to the Class C Reserve Account. (a) The
aggregate deposit targeted to be made to the Class C Reserve Account with
respect to each Due Period is an amount equal to the sum of Class C Reserve
Account deposits targeted to be made for each tranche of Class C Notes. The
amount of any such deposit and the circumstances that require that a deposit to
be made will be set forth in the terms document for that tranche of Class C
Notes.
77
Unless another time is specified for making that deposit in the terms document
for a tranche of Class C Notes, these deposits will be made on each applicable
Monthly Interest Date.
(b) If the amount of funds available for a Due Period pursuant to Section
501(d) is at least equal to the aggregate amount of the deposits targeted by
clause (a), then the full amount of each such deposit will be made.
(c) (i) If the amount of funds available for a Due Period pursuant to
Section 501(d) is less than the aggregate amount of deposits targeted by clause
(a), then the amount available will be allocated to each tranche of Class C
Notes pro rata based on the ratio of the Nominal Liquidation Amount of that
tranche to the Nominal Liquidation Amount of all tranches of Class C Notes that
have a targeted deposit amount with respect to that Due Period. (ii) Any amount
in excess of the amount targeted to be deposited to the Principal Funding sub-
Account for any tranche of Notes will be reallocated to tranches of Class C
Notes that did not receive their targeted deposit pursuant to clause (i) pro
rata the same basis until all available funds are applied.
SECTION 519. Withdrawals from the Class C Reserve Account. Withdrawals
made pursuant to this Section with respect to any tranche of Class C Notes will
be made from the Class C Reserve sub-Account established for that tranche of
Class C Notes only after all allocations and reallocations have been made
pursuant to Sections 501, 502, 503, 505, 508 and 510, but in no event more than
the amount on deposit in the applicable Class C Reserve sub-Account. Such
withdrawals will be made first, as set forth in clause (a), and second, as set
forth in clause (b).
(a) Interest; Payments with Respect to Derivative Agreements for
Interest, Accretion on Discount Notes. If the amount on deposit in the
Interest Funding sub-Account for any tranche of Class C Notes is
insufficient to pay in full the amounts for which withdrawals are required
under Section 507(a), (b), (c), (d) or (e), on each date specified in that
Section, an amount equal to that deficiency will be withdrawn from that
Class C Reserve sub-Account and deposited into that Interest Funding sub-
Account.
(b) Payments of Principal; Payments with Respect to Derivative
Agreements for Principal. If the amount on deposit in the Principal Funding
sub-Account for any tranche of Class C Notes is insufficient to pay in full
the amounts for which withdrawals are required under Section 511, an amount
equal to the lesser of (i) that deficiency, and (ii) the amount by which
the Nominal Liquidation Amount of that tranche of Class C Notes is less
than the Adjusted Outstanding Dollar Principal Amount of that tranche of
Class C Notes will be withdrawn from that Class C Reserve sub-Account and
deposited into that Principal Funding sub-Account on the Business Day
before the date of the applicable withdrawal required pursuant to Section
511.
(c) Amounts Treated as Finance Charge Collections. (i) If at any time
a Class C Reserve sub-Account has an amount of funds on deposit in excess
of the amount targeted to be deposited pursuant to the applicable terms
document, that excess may be withdrawn and treated as Finance Charge
Collections pursuant to Section 501(2). (ii) Upon payment in full of any
tranche of Class C Notes, any amount on deposit in the applicable Class C
78
Reserve sub-Account will be withdrawn and treated as Finance Charge
Collections pursuant to Section 501(2).
SECTION 520. Reinvestment in the Collateral Certificate. (a) The amount of
principal accreted on any tranche of Discount Notes available pursuant to
Section 503(f) will be paid to the Master Trust to increase the Invested Amount
of the Collateral Certificate pursuant to Section 4.03(e) of the Series 2000
Supplement.
(b) Any Finance Charge Collections available pursuant to Section 501(c)
which are allocated pursuant to Section 527(f)(i) to any tranche of Notes will
be paid to the Master Trust to increase the Invested Amount of the Collateral
Certificate pursuant to Section 4.03(d) of the Series 2000 Supplement.
(c) Any amount of Principal Collections available pursuant to Section
502(c) will be paid to the Master Trust to increase the Invested Amount of the
Collateral Certificate pursuant to Section 403(f) of the Series 2000 Supplement.
SECTION 521. Final Payment. Each tranche of Notes will be considered to be
paid in full, the Holders of such tranche of Notes will have no further right or
claim, and the Issuer will have no further obligation or liability with respect
to such tranche of Notes, on the earliest to occur of
(a) the date of the payment in full of the stated principal amount of
and all accrued interest on that tranche of Notes;
(b) the date on which the Outstanding Dollar Principal Amount of such
Notes is reduced to zero, and all accrued interested on such Notes is paid
in full; or
(c) on the Legal Maturity Date of such Notes, after giving effect to
all deposits, allocations, reallocations, sales of Receivables and payments
to be made on such date.
SECTION 522. Timing of Deposits. So long as the Master Trust is permitted
to make payments to the Issuer under Sections 4.02(a), (b) or (c) of the Series
2000 Supplement on the applicable Interest Deposit Date or Principal Deposit
Date, the amounts received by the Issuer pursuant to Sections 4.02(a), (b) and
(c) of the Series 2000 Supplement will be allocated to and deposited into each
applicable sub-Account for each tranche of Notes:
(a) in months that do not have an Interest Payment Date or Principal
Payment Date, as the case may be, for the applicable tranche, on the
applicable Monthly Interest Date or the applicable Monthly Principal Date,
as the case may be;
(b) in months that have an Interest Payment Date or Principal Payment
Date, as the case may be, for the applicable tranche, one Business Day
before such Interest Payment Date or Principal Payment Date; or
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(c) in any case, as provided in the applicable terms document or as
much earlier as necessary to make timely payments to the applicable
Noteholders or Derivative Counterparties.
Otherwise, the funds received by the Issuer pursuant to Section 4.02 of the
Series 2000 Supplement will be allocated to and deposited into each applicable
sub-Account as soon after receipt of the applicable funds as practicable.
SECTION 523. Sale of Receivables. (a)(i) If a tranche of Notes has been
accelerated pursuant to Section 702 following an Event of Default, the Trustee
may, and at the direction of the Majority Holders of that tranche of Notes will,
cause the Master Trust to sell Principal Receivables and the related Finance
Charge Receivables (or interests therein) as set forth in this Section.
(ii) Such a sale will be permitted only if:
(A) in the case of a sale of an Undivided Interest, the Issuer will
have delivered to the Trustee and the Rating Agencies a Master Trust Tax
Opinion with respect to such sale; and
(B) in any case, at least one of the following conditions is met:
(1) the Holders of 90% of the aggregate Outstanding Dollar
Principal Amount of the accelerated tranche of Notes consent; or
(2) the net proceeds of such sale would be sufficient to pay all
Outstanding amounts due on the accelerated tranche of Notes; or
(3) the Trustee determines that the Finance Charge Collections
and Principal Collections allocable to the accelerated tranche of
Notes, payments to be received from any applicable Derivative
Agreement and amounts on deposit in the applicable sub-Account will
likely not be sufficient to make payments on the accelerated tranche
of Notes when due and 66-2/3% of the Holders of the accelerated
tranche of Notes consent to the sale.
(iii) In the case of an acceleration of a tranche of Notes of a
subordinated class, if (A) Receivables Sales Proceeds would be less than the
Nominal Liquidation Amount of the accelerated tranche of Notes, and (B) the
provisions of Section 515 or Section 516 would prevent the payment of the
accelerated tranche of subordinated Notes, such sale will be delayed until a
level of prefunding of the Principal Funding sub-Accounts for the senior classes
of Notes of that series has been reached such that the amount of such deficiency
in Receivables Sales Proceeds is no longer required to provide subordination
protection for the senior classes of that series.
(b) If the Nominal Liquidation Amount with respect to any tranche of Notes
is greater than zero on its Legal Maturity Date (after giving effect to
deposits, allocations, reallocations,
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payments and distributions otherwise to be made on that Legal Maturity Date),
the Issuer will cause the Master Trust to sell on that Legal Maturity Date
Principal Receivables and the related Finance Charge Receivables (or interests
therein).
(c) The amount of Principal Receivables and the related Finance Charge
Receivables (or interests therein) to be sold pursuant to this Section will be
in an amount of up to 110% of the Nominal Liquidation Amount of the affected
tranche, but in no case will that amount of Principal Receivables and Finance
Charge Receivables exceed the following amount:
the Nominal Liquidation Amount of
the affected tranche of Notes the Series 2000 Allocation the amount of
----------------------------------- x Percentage (as defined in the Series x Receivables in the
the Nominal Liquidation Amount of 2000 Supplement) of the Collateral Master Trust
all Outstanding Notes Certificate
(d) (i) The interest to be sold will be:
(A) in the case of any affected tranche of Notes that are Class A
Notes, that have reached their Legal Maturity Date by the date of such
sale, or are not prevented from being repaid by virtue of Section 515 or
Section 516, either (1) an Absolute Ownership, or (2) an Amortizing
Undivided Interest; and
(B) in all other cases, a Revolving Undivided Interest.
(ii) On earlier of (A) the Legal Maturity Date of the related tranche of
Notes, and (B) the first date on which the related tranche of Notes is no longer
prevented from being repaid by virtue of Section 515 or Section 516 (the
"Conversion Date"), each Revolving Undivided Interest will convert into either
(1) an Absolute Ownership of sale of Principal Receivables and Finance Charge
Receivables or (2) an Amortizing Undivided Interest.
(e) In the case of each Revolving Undivided Interest, with respect to each
Due Period ending on or before the applicable Conversion Date, a pro rata amount
of collections relating to Principal Receivables will be allocated to such
Revolving Undivided Interest based on the ratio of (i) the principal balance (as
determined below) of such Revolving Undivided Interest as of the last day of
such Due Period, to (ii) the aggregate amount of Principal Receivables in the
Master Trust as of the last day of such Due Period. Such allocation of
collections relating to Principal Receivables for such Due Period will be
treated as Principal Collections pursuant to Sections 502(b) and (c).
(f) In the case of each Amortizing Undivided Interest, a pro rata amount of
collections relating to Principal Receivables will be allocated to such
Amortizing Undivided Interest based on the ratio of (i) the principal balance
(as determined below) of such Undivided Interest as of the last day of the Due
Period ending on or immediately before the Conversion Date, to (ii) the
aggregate amount of Principal Receivables in the Master Trust as of the last day
of such Due Period ending after the Conversion Date. Such allocation of
collections relating to Principal Receivables for such Due Period will be paid
to the purchaser of the Amortizing Undivided
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Interest in an amount equal to the lesser of (A) the amount of such allocation,
and (B) the amount necessary to reduce the principal amount of such Amortizing
Undivided Interest to zero (after giving effect to any allocations of Defaulted
Amount to such Undivided Interest for such Due Period pursuant to clause
(h)(ii)), and any excess allocation will be treated as Principal Collections
pursuant to Sections 502(b) and (c).
(g) In the case of each Undivided Interest, with respect to each Due
Period, a pro rata amount of collections relating to Finance Charge Receivables
will be allocated to such Undivided Interest based on the ratio of (i) the
principal balance (as determined below) of such Undivided Interest as of the
last day of such Due Period, to (ii) the aggregate amount of Principal
Receivables in the Master Trust as of the last day of such Due Period. Such
allocation of collections relating to Finance Charge Receivables for such Due
Period will be paid to the purchaser of the Undivided Interest.
(h) The principal balance of each Undivided Interest as of the end of any
Due Period will be equal to:
(i) the initial amount of Principal Receivables comprising such
Undivided Interest,
less
----
(ii) the cumulative amount, computed for each Due Period ended since
the sale of such Undivided Interest, of an amount equal to the product of:
the principal balance of such Undivided Interest as of the last day of
the immediately preceding Due Period (or in the case of the Due Period
the Defaulted Amount for in which such Undivided Interest is sold, the initial principal balance
such Due Period x of such Undivided Interest)
-------------------------------------------------------------------------
the aggregate amount of all Principal Receivables in the Master Trust
as of the last day of such Due Period
less
----
(iii) the amount of collections with respect to Principal Receivables
previously paid to the purchaser of such Undivided Interest pursuant to
clause (f).
(i) Sales proceeds received with respect to a tranche of RSP Notes received
pursuant to clause (c) will be allocated in the following priority:
(i) first, to be deposited in the Principal Funding sub-Account for
that tranche of Notes, an amount up to the Adjusted Outstanding Dollar
Principal Amount immediately before giving effect to such deposit; and
(ii) second, to be deposited in the Interest Funding sub-Account of
that tranche of Notes, the balance of such sales proceeds.
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(j) Any amount remaining on deposit in the Interest Funding sub-Account for
a tranche of RSP Notes after final payment thereof pursuant to Section 521, will
be treated as Finance Charge Collections pursuant to Section 501(2).
SECTION 524. Netting of Deposits and Payments. The Issuer, in its sole
discretion, may make all deposits to Interest Funding sub-Account and Principal
Funding sub-Account pursuant to Sections 503 and 508 with respect to any Due
Period net of, and after giving effect to, (a) all reallocations to be made
pursuant to Sections 502(a), (b) all payments to be made to Derivative
Counterparties pursuant to Sections 507 and 511, and (c) all reinvestments in
the Collateral Certificate to be made pursuant to Section 520.
SECTION 525. Pro Rata Payments within a Tranche. All payments of
principal, interest or other amounts to Holders of the Notes of a single tranche
will be made pro rata based on the Outstanding Dollar Principal Amount of their
Notes.
SECTION 526. Allocations of Reductions from Investor Charge-Offs to the
Nominal Liquidation Amount or Receivables Sales Proceeds Amount of Subordinated
Classes. On each date when there is a computation of Investor Charge-Offs
pursuant to Section 4.03(a) of the Series 2000 Supplement, that reduction will
be allocated (and reallocated) on that date to each tranche of Notes as set
forth in this Section.
(a) Initially, the amount of all such reductions in the Invested
Amount of the Collateral Certificate will be allocated to each tranche of
Outstanding Notes (other than any tranche of RSP Notes) pro rata based on
the Nominal Liquidation Amount of that tranche.
(b) Immediately afterwards, the amount of Investor Charge-Offs
allocated to the Class A Notes and Class B Notes of a series will be
reallocated to the Class C Notes of that series (including RSP Notes) as
set forth in clause (c), and the amount of Investor Charge-Offs allocated
to the Class A Notes and not reallocated to the Class C Notes of that
series will be reallocated to the Class B Notes of that series (including
RSP Notes) as set forth in clause (d), subject in each case to the limits
of clauses (c) and (d). Any amount of Investor Charge-Offs which cannot be
reallocated to a subordinated class as a result of the limits in clauses
(c) and (d) will reduce the Nominal Liquidation Amount or Receivables Sales
Proceeds Deposit Amount of the tranche of Notes to which it was initially
allocated pursuant to clause (a).
(c) (i) The reallocation in clause (b) of Investor Charge-Offs from
any tranche of Class A Notes or Class B Notes of a series to the Class C
Notes of that series is subject to the following limits:
(A) After giving effect to such reallocation from that tranche of
Class A Notes and reallocations from Class B Notes of the same series,
that tranche's Class A Usage of Class C Required Subordinated Amount
will not exceed that tranche's Class A Required Subordinated Amount of
Class C Notes.
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(B) After giving effect to such reallocation from that tranche of
Class B Notes and reallocations from Class A Notes of the same series,
that tranche's Class B Usage of Class C Required Subordinated Amount
will not exceed that tranche's Class B Required Subordinated Amount of
Class C Notes.
(ii) The amount permitted to be reallocated to tranches of Class C
Notes pursuant to this clause (c) will be applied to each tranche of Class
C Notes of that series pro rata based on the ratio of (A) the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of that
tranche of Class C Notes to (B) the aggregate Nominal Liquidation Amount or
Receivables Sales Proceeds Deposit Amount of all tranches of Class C Notes
of that series (in each case computed after giving effect to the allocation
to the Class C Notes pursuant to clause (a)). In the case of any tranche of
Class A Notes or Class B Notes that was Outstanding before the date of any
reimbursement of any reduction in the Nominal Liquidation Amount or
Receivables Sales Proceeds Deposit Amount of any tranche of Class C Notes
of that series pursuant to Section 527, for purposes of applying amounts
initially allocated to that tranche of Class A Notes or Class B Notes, the
ratio set forth in clauses (ii)(A) and (ii)(B) of this clause will be
determined without regard to that reimbursement.
(iii) No such reallocation will reduce the Nominal Liquidation Amount
or Receivables Sales Proceeds Deposit Amount of any tranche of Class C
Notes below zero.
(d) (i) The reallocation in clause (b) of Investor Charge-Offs from
any tranche of Class A Notes of a series to the Class B Notes of that
series is subject to the limit that after giving effect to such
reallocation from that tranche of Class A Notes, that tranche's Class A
Usage of Class B Required Subordinated Amount will not exceed that
tranche's Class A Required Subordinated Amount of Class B Notes.
(ii) The amount permitted to be reallocated to tranches of Class B
Notes pursuant to this clause (d) will be applied to each tranche of Class
B Notes of that series pro rata based on the ratio of (A) the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Amount of that
tranche of Class B Notes to (B) the aggregate Nominal Liquidation Amount or
Receivables Sales Proceeds Deposit Amount of all tranches of Class B Notes
of that series (in each case computed after giving effect to the allocation
to the Class C Notes and Class B Notes pursuant to clause (a) and the
reallocation pursuant to the Class C Notes pursuant to clause (c)). In the
case of any tranche of Class A Notes that was Outstanding before the date
of any reimbursement of any reduction in the Nominal Liquidation Amount or
Receivables Sales Proceeds Deposit Amount of any tranche of Class B Notes
of that series pursuant to Section 527, for purposes of applying amounts
initially allocated to that tranche of Class A Notes, the ratio set forth
in clauses (ii)(A) and (ii)(B) of this clause will be determined without
regard to that reimbursement.
(iii) No such reallocation will reduce the Nominal Liquidation Amount
or Receivables Sales Proceeds Deposit Amount of any tranche of Class B
Notes below zero.
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(e) (i) In the case of each tranche of Notes (other than any tranche
of RSP Notes), the Nominal Liquidation Amount of each such tranche will be
reduced by an amount equal to the Investor Charge-Offs which are allocated
or reallocated to that tranche of Notes, less the amount of Investor
Charge-Offs that are reallocated from that tranche of Notes to Notes of a
subordinated class of Notes of that series.
(ii) In the case of a tranche of RSP Notes, an amount equal to the
Investor Charge-Offs which are reallocated to that tranche of Notes will be
withdrawn from the Principal Funding sub-Account for that tranche and paid
to the Master Trust for application pursuant to Section 4.03(a)(ii) of the
Series 2000 Supplement.
SECTION 527. Allocations of Reimbursements of Reductions in the Nominal
Liquidation Amount or Receivables Sales Proceeds Deposit Deficits. If, as of
the end of any Due Period,
(1) there are Allocable Miscellaneous Payments available pursuant to
Section 4.03(b) of the Series 2000 Supplement or Investor Finance Charge
Collections available pursuant to Sections 4.02(a)(ii)(C) and 4.03(c) of
Series 2000 Supplement to reimburse (A) any Invested Amount Deficit or (B)
any Receivables Sales Proceeds Deposit Deficits as of the last day of that
Due Period, or
(2) there are Finance Charge Collections available pursuant to Section
501(c) to reimburse (A) any Nominal Liquidation Amount Deficits or (B) any
Receivables Sales Proceeds Deposit Deficits as of the end of that Due
Period remaining after giving effect to reimbursements pursuant to clause
(1),
such funds will be allocated to each tranche of Notes as follows:
(a) first, to each tranche of Class A Notes of each series pro rata
based on the ratio of the Nominal Liquidation Amount Deficit thereof (or in
the case of tranches of RSP Notes, the Receivables Sales Proceeds Deposit
Deficit thereof) to the aggregate Nominal Liquidation Amount Deficits and
Receivables Sales Proceeds Deposit Deficits of all tranches of Class A
Notes of that series, but
(i) with respect to tranches of Notes that are not RSP Notes, in
no event will the Nominal Liquidation Amount of such a tranche of
Notes be increased above the Adjusted Outstanding Dollar Principal
Amount of such tranche,
(ii) with respect to tranches of RSP Notes, in no event will the
Receivables Sales Proceeds Deposit Amount of such a tranche of Notes
be increased above the amount of Receivables Sales Proceeds of that
tranche less the aggregate amount of any withdrawals of Receivables
Sales Proceeds made pursuant to Section 511(a), (b) or (c),
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and any allocation that would otherwise so increase the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of such tranche above
such amount will be reallocated to the remaining tranches of Class A Notes
of such series to the extent possible under this clause (a) and then
pursuant to clause (b),
(b) second, to each tranche of Class B Notes of each series pro rata
based on the ratio of the Nominal Liquidation Amount Deficit thereof (or in
the case of tranches of RSP Notes, the Receivables Sales Proceeds Deposit
Deficit thereof) to the aggregate Nominal Liquidation Amount Deficit and
Receivables Sales Proceeds Deposit Deficits of all tranches of Class B
Notes of that series, but
(i) with respect to tranches of Notes that are not RSP Notes, in
no event will the Nominal Liquidation Amount of such a tranche of
Notes be increased above the Adjusted Outstanding Dollar Principal
Amount of such tranche,
(ii) with respect to tranches of RSP Notes, in no event will the
Receivables Sales Proceeds Deposit Amount of such a tranche of Notes
be increased above the initial amount of Receivables Sales Proceeds of
that tranche less the aggregate amount of any withdrawals of
Receivables Sales Proceeds made pursuant to Section 511(a), (b) or
(c),
and any allocation that would otherwise so increase the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of such tranche above
such amount will be reallocated to the remaining tranches of Class B Notes
of such series to the extent possible under this clause (b) and then
pursuant to clause (c), and
(c) third, to each tranche of Class C Notes of each series pro rata
based on the ratio of the Nominal Liquidation Amount Deficit thereof (or in
the case of tranches of RSP Notes, the Receivables Sales Proceeds Deposit
Deficit thereof) to the aggregate Nominal Liquidation Amount Deficit and
Receivables Sales Proceeds Deposit Deficits of all tranches of Class C
Notes of that series, but
(i) with respect to tranches of Notes that are not RSP Notes, in
no event will the Nominal Liquidation Amount of such a tranche of
Notes be increased above the Adjusted Outstanding Dollar Principal
Amount of such tranche,
(ii) with respect to tranches of RSP Notes, in no event will the
Receivables Sales Proceeds Deposit Amount of such a tranche of Notes
be increased above the amount of Receivables Sales Proceeds of that
tranche less the aggregate amount of any withdrawals of Receivables
Sales Proceeds made pursuant to Section 511(a), (b) or (c),
and any allocation that would otherwise so increase the Nominal Liquidation
Amount or Receivables Sales Proceeds Deposit Amount of such tranche above
such amount will be reallocated to the remaining tranches of Class C Notes
of such series to the extent possible
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under this clause (c), and any unallocated amount will be treated as
Finance Charge Collections pursuant to Section 501(2).
(d) Effect will be given to allocations in the following priority (i)
first, to allocations of Allocable Miscellaneous Payments pursuant to
Section 4.03(b) of the Series 2000 Supplement, (ii) second, to allocations
of Investor Finance Charge Collections pursuant to Sections 4.02(a)(ii)(C)
and 4.03(c) of the Series 2000 Supplement, and (iii) third, to allocations
of Finance Charge Collections pursuant to Section 501(c).
(e) With respect to allocations of Allocable Miscellaneous Payments
pursuant to Section 4.03(b) of the Series 2000 Supplement and allocations
of Investor Finance Charge Collections pursuant to Sections 4.02(a)(ii)(C)
and 4.03(c) of the Series 2000 Supplement,
(i) in the case of tranches of Notes that are not RSP Notes, the
aggregate amount of such funds allocated to those tranches will be
retained by the Master Trust to increase the Invested Amount of the
Collateral Certificate pursuant to Section 4.03(b)(i) of the Series
2000 Supplement; and
(ii) in the case of tranches of RSP Notes, the funds allocable to
each such tranche will be deposited into the Principal Funding sub-
Account for that tranche pursuant to Section 509(d).
(f) With respect to allocations of Finance Charge Collections pursuant to
Section 501(c),
(i) in the case of tranches of Notes that are not RSP Notes, the
aggregate amount of such funds allocated to those tranches will be
paid to the Master Trust to increase the Invested Amount of the
Collateral Certificate pursuant to Section 4.03(d) of the Series 2000
Supplement, and
(ii) in the case of tranches of RSP Notes, the funds allocable to
each such tranche will be deposited into the Principal Funding sub-
Account for that tranche.
(g) Any Receivables Sales Proceeds Deposit Amounts on deposit in the
Interest Funding sub-Account of any tranche of RSP Notes will be withdrawn from
such Interest Funding sub-Account on each applicable Interest Payment Date
(after giving to any payment of interest on that tranche on that date), and
deposited into the applicable Principal Funding Account in an amount equal to
the lesser of (i) the amount of Receivables Sales Proceeds on deposit in that
Interest Funding sub-Account, and (ii) the amount of any Receivables Sales
Proceeds Deposit Deficit of that tranche.
SECTION 528. Order of Giving Effect to Reductions and Reimbursements of
Nominal Liquidation Amount. If on any date the Nominal Liquidation Amount of
any tranche of Notes is to be reduced or increased pursuant to clauses (b)(iv),
(b)(v) and/or (b)(vi) of the definition of
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Nominal Liquidation Amount, such reductions and reimbursements will be allocated
to the Notes of that tranche in the following order:
(a) first, reductions pursuant to clause (b)(vi) (reductions from
allocations of Investor Charge-Offs pursuant to Section 526);
(b) second, reductions pursuant to clause (b)(v) (reallocations of
Principal Collections pursuant to Section 502(a)); and
(c) third, reimbursements pursuant to clause (b)(iv) (reimbursements
of earlier reductions with Finance Charge Collections).
ARTICLE VI
Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or the
Banks
SECTION 601. Satisfaction and Discharge of Indenture. This Indenture will
cease to be of further effect with respect to any series, class or tranche of
Notes (except as to any surviving rights of transfer or exchange of Notes of
that series, class or tranche expressly provided for herein or in the form of
Note for that series, class or tranche), and the Trustee, on demand of and at
the expense of the Issuer, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to that series, class or
tranche, when:
(a) all Notes of that series, class or tranche theretofore
authenticated and delivered (other than (i) Notes of that series, class or
tranche which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (ii) Notes of that series,
class or tranche for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter repaid
to the Issuer or discharged from that trust, as provided in Section 1103)
have been delivered to the Trustee canceled or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder (including payments to the Trustee pursuant to Section 807) by
the Issuer with respect to the Notes of that series, class or tranche; and
(c) the Issuer has delivered to the Trustee an Issuer Certificate and
an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to the Notes of that series, class or tranche have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series, class or tranche of Notes, the obligations of the Issuer to the
Trustee with respect to that series, class or tranche under Section 807 will
survive and the obligations of the Trustee under Sections 602 and 1103 will
survive.
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SECTION 602. Application of Trust Money. All money and obligations
deposited with the Trustee pursuant to Section 601 or Section 603 and all money
received by the Trustee in respect of such obligations will be held in trust and
applied by it, in accordance with the provisions of the series, class or tranche
of Notes in respect of which it was deposited and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for whose payment that money and
obligations have been deposited with or received by the Trustee; but that money
and obligations need not be segregated from other funds except to the extent
required by law.
SECTION 603. Cancellation of Notes Held by the Issuer or the Banks. If the
Issuer, the Banks or any of their Affiliates holds any Notes, that Holder may,
subject to Section 515 and 516, by notice from that Holder to the Trustee cause
the Note to be canceled, whereupon (a) the Note will no longer be Outstanding,
and (b) the Issuer will cause the Invested Amount of the Collateral Certificate
to be reduced by an amount equal to the Nominal Liquidation Amount of those
canceled Notes.
ARTICLE VII
Remedies
SECTION 701. Events of Default. "Event of Default", wherever used herein,
means with respect to any series, class or tranche of Notes any one of the
following events (whatever the reason for such Event of Default and whether it
will be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless such event is either
inapplicable to a particular series, class or tranche or it is specifically
deleted or modified in the applicable terms document creating such series, class
or tranche of Notes or in the form of Note for such series, class or tranche:
(a) with respect to any tranche of Notes, a default in the payment by
the Issuer of any interest upon such Notes when such Notes become due and
payable, and continuance of such default for a period of five Business
Days;
(b) with respect to any tranche of Notes, a default in the payment by
the Issuer of the principal amount of such Notes at its Legal Maturity
Date;
(c) a default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of such
series, class or tranche (other than a covenant or warranty in respect of
the Notes of such series, class or tranche a default in the performance of
which or the breach of which is elsewhere in this Section specifically
dealt with), all of such covenants and warranties in this Indenture which
are not expressly stated to be for the benefit of a particular series,
class or tranche of Notes being deemed to be in respect of the Notes of all
series, classes or tranches for this purpose, and
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continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 10% in
Outstanding Dollar Principal Amount of the Outstanding Notes of such
series, class or tranche, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder;
(d) the entry of an order for relief against the Issuer under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging
the Issuer a bankrupt or insolvent under any other applicable Federal or
State law, or the entry of a decree or order approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Issuer under the Federal Bankruptcy Code or any other
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Issuer
or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days;
(e) the consent by the Issuer to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Issuer or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of action by the Issuer in furtherance of
any such action; or
(f) with respect to any series, class or tranche of Notes, any
additional Event of Default specified in the terms document for such
series, class or tranche as applying to such series, class or tranche, or
specified in the form of Note for such series, class or tranche.
SECTION 702. Acceleration of Maturity; Rescission and Annulment. (a) If an
Event of Default described in clause (a), (b), (c) or (f) (if the Event of
Default under clause (c) or (f) is with respect to less than all series, classes
or tranches of Notes then Outstanding) of Section 701 occurs and is continuing
with respect to any series, class or tranche, then in each such case, unless the
principal of all the Notes of such series, class or tranche will have already
become due and payable, either the Trustee or the Holders of not less than 50%
in aggregate Outstanding Dollar Principal Amount of the Notes of such series,
class or tranche then Outstanding hereunder (each such series, class or tranche
acting as a separate class), by notice in writing to the Issuer (and to the
Trustee if given by Holders), may declare the Outstanding Dollar Principal
Amount of all the Notes of such series, class or tranche then Outstanding and
all interest accrued or principal accreted and unpaid (if any) thereon to be due
and payable immediately, and upon any such
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declaration the same will become and will be immediately due and payable,
anything in this Indenture or in the Notes of such series, class or tranche to
the contrary notwithstanding.
(b) If an Event of Default described in clause (c) or (f) (if the Event of
Default under clause (c) or (f) is with respect to all series, classes or
tranches of Notes then Outstanding) of Section 701 occurs and is continuing,
then in each such case, unless the principal of all the Notes will have already
become due and payable, either the Trustee or the Holders of not less than 50%
in aggregate Outstanding Dollar Principal Amount of all the Notes then
Outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Holders), may declare the Outstanding Dollar
Principal Amount of all the Notes then Outstanding and all interest accrued or
principal accreted and unpaid (if any) thereon to be due and payable
immediately, and upon any such declaration the same will become and will be
immediately due and payable, notwithstanding anything in this Indenture or in
the Notes to the contrary. Such payments are subject to Article V.
(c) If an Event of Default described in clause (d) or (e) of Section 701
occurs and is continuing, then the Notes will automatically be and become
immediately due and payable by the Issuer, without notice, or demand to any
Person and the Issuer will automatically and immediately be obligated to pay off
the Notes.
At any time after such a declaration of acceleration has been made with
respect to the Notes of any series, class or tranche and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Majority Holders of such series, class
or tranche, by written notice to the Issuer and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum sufficient
to pay
(i) all overdue installments of interest on the Notes of such
series, class or tranche,
(ii) the principal of any Notes of such series, class or tranche
which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Notes of such series, class or tranche,
to the extent that payment of such interest is lawful,
(iii) interest upon overdue installments of interest at the rate
or rates prescribed therefor by the terms of the Notes of such series,
class or tranche to the extent that payment of such interest is
lawful, and
(iv) all sums paid by the Trustee hereunder and the reasonable
compensation, expenses, disbursements of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 807;
and
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(b) all Events of Default with respect to such series, class or
tranche of Notes, other than the nonpayment of the principal of the Notes
of such series, class or tranche which has become due solely by such
acceleration, have been cured or waived as provided in Section 716.
No such rescission will affect any subsequent default or impair any right
consequent thereon.
SECTION 703. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of any installment of interest
on any series, class or tranche of Notes when such interest becomes due and
payable, or
(b) the Issuer defaults in the payment of the principal of any series,
class or tranche of Notes at the Legal Maturity Date thereof,
and any such default continues for any period of grace provided with respect to
such series, class or tranche of Notes, the Issuer will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of any such Notes the whole
amount then due and payable on any such Notes for principal and interest
(subject to Article V), with interest, to the extent that payment of such
interest will be legally enforceable, upon the overdue principal and upon
overdue installments of interest, (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 terms document; and (ii) in the case of
Discount Notes, as specified in the applicable terms document;
and in addition thereto, such further amount as will be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
all other amounts due the Trustee under Section 807.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon the Notes of such series, class or
tranche and collect the money adjudged or decreed to be payable in the manner
provided by law out of the Collateral or any other obligor upon such Notes,
wherever situated.
SECTION 704. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor upon the Notes or the property of the Issuer or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Notes will then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee will have
made any demand on the Issuer for the payment of overdue principal or interest)
will be entitled and empowered, by intervention in such proceedings or
otherwise,
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(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary and advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and all other amounts due the Trustee under Section 807) and of the
Noteholders allowed in such judicial proceeding, and
(ii) to collect and receive any funds or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Noteholder to make such payment to the Trustee and in the event that the Trustee
will consent to the making of such payments directly to the Noteholders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 807.
Nothing herein contained will be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
SECTION 705. Trustee May Enforce Claims Without Possession of Notes. All
rights of action and claims under this Indenture or the Notes of any series,
class or tranche may be prosecuted and enforced by the Trustee without the
possession of any of the Notes of such series, class or tranche or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee will be brought in its own name as trustee of an
express trust, and any recovery of judgment will, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, be for the ratable benefit of the Holders of
the Notes of the series, class or tranche in respect of which such judgment has
been recovered.
SECTION 706. Application of Money Collected. Any money or other property
collected by the Trustee with respect to a series, class or tranche of Notes
pursuant to this Article will be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest, upon presentation of the Notes of such series,
class or tranche and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
(a) first, to the payment of all amounts due the Trustee under Section
807.
(b) second, to the payment of the amounts then due and unpaid upon the
Notes of that series, class or tranche for principal and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any
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kind (but subject to the allocation provided in Article V), according to
the amounts due and payable on such Notes for principal and interest,
respectively.
SECTION 707. Trustee May Elect to Hold the Collateral Certificate.
Following an acceleration of any tranche of Notes, the Trustee may elect to
continue to hold the Collateral Certificate and apply distributions on the
Collateral Certificate in accordance with the regular distribution provisions
pursuant to Article V of this Indenture, except that principal will be paid on
the accelerated tranche of Notes to the extent funds are received from the
Master Trust and allocated to the accelerated tranche, and payment is permitted
by the subordination provisions of the accelerated tranche.
SECTION 708. Sale of Receivables for Accelerated Notes. In the case of a
tranche of Notes that has been accelerated following an Event of Default, the
Trustee may, and at the direction of the Majority Holders of that tranche of
Notes will, cause the Master Trust to sell Principal Receivables and the related
Finance Charge Receivables (or interests therein) as provided in Section 523.
SECTION 709. Noteholders Have the Right to Direct the Time, Method and
Place of Conducting Any Proceeding for Any Remedy Available to the Trustee. The
Majority Holders of any accelerated tranche of Notes have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee. This
right may be exercised only if the direction provided by the Noteholders does
not conflict with applicable law or this Indenture or has a substantial
likelihood of involving the Trustee in personal liability.
SECTION 710. Limitation on Suits. No Holder of any Note of any series,
class or tranche will have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Notes of such series, class
or tranche;
(b) the Holders of not less than 25% in Outstanding Dollar Principal
Amount of the Outstanding Notes of such series, class or tranche have made
written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Majority Holders of such
series, class or tranche;
it being understood and intended that no one or more Holders of Notes of such
series, class or tranche will have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Notes of such series, class or
tranche, or to obtain or to seek to obtain priority or preference over any other
such Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and proportionate benefit of all the Holders
of all Notes of such series, class or tranche.
SECTION 711. Unconditional Right of Noteholders to Receive Principal and
Interest; Limited Recourse. Notwithstanding any other provisions in this
Indenture, the Holder of any Note will have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on the respective Legal Maturity Dates expressed in such Note and to institute
suit for the enforcement of any such payment, and such right will not be
impaired without the consent of such Holder; provided, however, that
notwithstanding any other provision of this Indenture to the contrary, the
obligation to pay principal of or interest on the Notes or any other amount
payable to any Noteholder will be without recourse to the Issuer, the Banks, the
Trustee, the Issuer Trustee or any affiliate, officer, employee or director of
any of them, and the obligation of the Issuer to pay principal of or interest on
the Notes or any other amount payable to any Noteholder will be subject to
Article V.
SECTION 712. Restoration of Rights and Remedies. If the Trustee or any
Noteholder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, then and in every such case the Issuer, the Trustee and the Noteholders
will, subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Noteholders will continue as though no such
proceeding had been instituted.
SECTION 713. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Noteholders is intended to
be exclusive of any other right or remedy, and every right and remedy will, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, will not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 714. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default will impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Noteholders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Noteholders, as the case may be.
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SECTION 715. Control by Noteholders. The Majority Holders of any series,
class or tranche will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Notes of such
series, class or tranche, provided that:
(a) the Trustee will have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith will, by a Trustee Authorized
Officer, determine that the proceedings so directed would involve it in
personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 716. Waiver of Past Defaults. The Majority Holders of any series,
class or tranche may on behalf of the Holders of all the Notes of such series,
class or tranche waive any past default hereunder with respect to such series,
class or tranche and its consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any Note of such
series, class or tranche, or
(b) in respect of a covenant or provision hereof which under Article X
cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such series, class or tranche.
Upon any such waiver, such default will cease to exist, and any Event of
Default arising therefrom will be deemed to have been cured, for every purpose
of this Indenture; but no such waiver will extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 717. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by his acceptance thereof will be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section will not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder or group of
Noteholders, holding in the aggregate more than 10% in Outstanding Dollar
Principal Amount of the Outstanding Notes of any series, class or tranche to
which the suit relates, or to any suit instituted by any Noteholders for the
enforcement of the payment of the principal of or interest on any Note on or
after the applicable Legal Maturity Date expressed in such Note.
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SECTION 718. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VIII
The Trustee
SECTION 801. Certain Duties and Responsibilities. (a) The Trustee
undertakes to perform any duties and only such duties as are specifically set
forth in this Indenture with respect to the Notes of any series, class or
tranche of Notes, and no implied covenants or obligations will be read into this
Indenture against the Trustee.
(b) In the absence of bad faith on its part, the Trustee may, with respect
to Notes of any series, class or tranche, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee will be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(c) In case an Event of Default with respect to any series, class or
tranche of Notes has occurred and is continuing, the Trustee will exercise with
respect to the Notes of such series, class or tranche such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a fiduciary would exercise or use under the circumstances
in the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) this clause will not be construed to limit the effect of clause
(a) of this Section;
(ii) the Trustee will not be liable for any error of judgment made in
good faith by a Trustee Authorized Officer, unless it will be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee will not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Majority Holders of any
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series, class or tranche relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Notes of such series, class or tranche; and
(iv) no provision of this Indenture will require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it will have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to the 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 Trustee will be subject to the provisions of this Section.
SECTION 802. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to Notes of any series, class or tranche,
(a) the Trustee will transmit by mail 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 Trustee,
(b) the Trustee will notify all Holders of Bearer Notes of such
series, class or tranche, by publication of notice of such default in an
Authorized Newspaper, or as otherwise provided in the applicable terms
document, and
(c) the Trustee will give prompt written notification thereof to the
Rating Agencies,
unless such default will have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of or interest
on any Note of such series, class or tranche, the Trustee will be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Trustee Authorized Officers
in good faith determine that the withholding of such notice is in the interests
of the Noteholders of such series, class or tranche; and provided, further, that
in the case of any default of the character specified in Section 701(c) with
respect to Notes of such series, class or tranche no such notice to Noteholders
of such series, class or tranche will be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Notes of any series, class or tranche, means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Notes of such series, class or tranche.
SECTION 803. Certain Rights of Trustee. Except as otherwise provided in
Section 801:
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(a) the Trustee may rely and will be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Issuer mentioned herein will be
sufficiently evidenced by an Issuer Certificate;
(c) whenever in the administration of this Indenture the Trustee will deem
it desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Issuer Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel will be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee will be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Noteholders pursuant to this Indenture, unless such Noteholders will have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee will not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee will determine to make such further inquiry or
investigation, it will be entitled to examine the books, records and premises of
the Issuer, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee will not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee will not be responsible for filing any financing statements
or continuation statements in connection with the Notes, but will cooperate with
the Issuer in connection with the filing of such financing statements or
continuation statements.
SECTION 804. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee will not be accountable for the use or application by the
Issuer of Notes or the proceeds thereof.
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SECTION 805. May Hold Notes. The Trustee, any Paying Agent, the Note
Registrar or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections 808
and 813, may otherwise deal with the Issuer with the same rights it would have
if it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 806. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee will be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Issuer.
SECTION 807. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity. (a) The Issuer agrees, solely with funds
available pursuant to Section 501(a),
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation will not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(iii) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Issuer under this
Section, the Issuer and the Noteholders agree that the Trustee will have a lien
prior to the Notes upon all property and funds held or collected by the Trustee
as such pursuant to Section 501 or 502, except funds held in the Accounts.
(b) The aggregate amount that the Issuer will pay with respect to any of
the amounts payable to or for the benefit of the Trustee pursuant to this
Section or otherwise will in no event be greater than the lesser of (i) $400,000
per month, and (ii) 0.05% of the aggregate Nominal Liquidation Amounts of the
Outstanding Notes as of the end of the preceding Due Period. The Trustee, in its
capacity as trustee under this Indenture, will have no recourse to any asset of
the Issuer other than funds available pursuant to Section 501(a) or to any
Person other than the Issuer.
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(c) This Section will survive the termination of this Indenture and the
resignation or replacement of the Trustee under Section 810.
SECTION 808. Disqualification; Conflicting Interests. If the Trustee has
or will acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee will, if so required by the Trust Indenture Act, either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Nothing herein will prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section 310(b) of the
Trust Indenture Act.
SECTION 809. Corporate Trustee Required; Eligibility. There will at all
times be a Trustee hereunder with respect to each series, class or tranche of
Notes, which will be a corporation organized and doing business under the laws
of the United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by Federal or State
authority, and having a rating of at least BBB- by Standard & Poor's. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation will be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Issuer may not, nor may
any Person directly or indirectly controlling, controlled by, or under common
control with the Issuer, serve as Trustee. If at any time the Trustee with
respect to any series, class or tranche of Notes will cease to be eligible in
accordance with the provisions of this Section, it will resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 810. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article will become effective until the acceptance of
appointment by the successor Trustee under Section 811.
(b) The Trustee may resign with respect to any series, class or tranche of
Notes at any time by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Trustee will not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series, class or tranche
of Notes at any time by Act of the Majority Holders of that series, class or
tranche, delivered to the Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act with respect to any series, class or tranche of Notes after
written request therefor by the Issuer
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or by any Noteholder who has been a bona fide Holder of a Note of that
series, class or tranche for at least 6 months, or
(ii) the Trustee ceases to be eligible under Section 809 with respect
to any series, class or tranche of Notes and fails to resign after written
request therefor by the Issuer or by any such Noteholder, or
(iii) the Trustee becomes incapable of acting with respect to any
series, class or tranche of Notes, or
(iv) the Trustee is adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property is appointed or any public officer takes
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuer may remove the Trustee, with respect to
the series, class or tranche, or in the case of clause (iv), with respect to all
series, classes or tranches, or (B) subject to Section 717, any Noteholder who
has been a bona fide Holder of a Note of such series, class or tranche for at
least 6 months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the series, class or
tranche, or, in the case of clause (iv), with respect to all series, classes or
tranches.
(e) If the Trustee resigns, is removed or becomes incapable of acting with
respect to any series, class or tranche of Notes, or if a vacancy will occur in
the office of the Trustee with respect to any series, class or tranche of Notes
for any cause, the Issuer will promptly appoint a successor Trustee for that
series, class or tranche of Notes. If, within one year after such resignation,
removal or incapacity, or the occurrence of such vacancy, a successor Trustee
with respect to such series, class or tranche of Notes is appointed by Act of
the Majority Holders of such series, class or tranche delivered to the Issuer
and the retiring Trustee, the successor Trustee so appointed will, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to such series, class or tranche and supersede the successor Trustee
appointed by the Issuer with respect to such series, class or tranche. If no
successor Trustee with respect to such series, class or tranche will have been
so appointed by the Issuer or the Noteholders of such series, class or tranche
and accepted appointment in the manner hereinafter provided, any Noteholder who
has been a bona fide Holder of a Note of that series, class or tranche for at
least 6 months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series, class or tranche.
(f) The Issuer will give written notice of each resignation and each
removal of the Trustee with respect to any series, class or tranche and each
appointment of a successor Trustee with respect to any series, class or tranche
to each Noteholder as provided in Section 106 and to each Rating Agency. Each
notice will include the name of the successor Trustee and the address of its
principal Corporate Trust Office.
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SECTION 811. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder will execute, acknowledge and deliver to the Issuer
and to the predecessor Trustee an instrument accepting such appointment, with a
copy to the Rating Agencies, and thereupon the resignation or removal of the
predecessor Trustee will become effective with respect to any series, class or
tranche as to which it is resigning or being removed as Trustee, and such
successor Trustee, without any further act, deed or conveyance, will become
vested with all the rights, powers, trusts and duties of the predecessor Trustee
with respect to any such series, class or tranche; but, on request of the Issuer
or the successor Trustee, such predecessor Trustee will, upon payment of its
reasonable charges, if any, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the predecessor
Trustee, and will duly assign, transfer and deliver to such successor Trustee
all property and money held by such predecessor Trustee hereunder with respect
to all or any such series, class or tranche, subject nevertheless to its lien,
if any, provided for in Section 807. Upon request of any such successor Trustee,
the Issuer will execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
In case of the appointment hereunder of a successor Trustee with respect to
the Notes of one or more (but not all) series, classes or tranches, the Issuer,
the predecessor Trustee and each successor Trustee with respect to the Notes of
any applicable series, class or tranche will execute and deliver a supplemental
indenture which will contain such provisions as will be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Notes of any series, class or tranche as
to which the predecessor Trustee is not being succeeded will continue to be
vested in the predecessor Trustee, and will add to or change any of the
provisions of this Indenture as will be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture will constitute
such Trustees co-trustees of the same trust and that each such Trustee will be
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to any series, class or tranche of Notes
will accept its appointment unless at the time of such acceptance such successor
Trustee will be qualified and eligible with respect to that series, class or
tranche under this Article.
SECTION 812. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee will be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, will be the successor of the Trustee hereunder, provided such
corporation will be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. The Issuer will give prompt written notice of such merger,
conversion, consolidation or succession to the Rating Agencies. In case any
Notes will have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
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SECTION 813. Preferential Collection of Claims Against Issuer. If and when
the Trustee will be or become a creditor of the Issuer (or any other obligor
upon the Notes), the Trustee will be subject to the provisions of Section 311 of
the Trust Indenture Act. A Trustee who has resigned or been removed will be
subject to Section 311(a) of the Trust Indenture Act to the extent provided
therein.
SECTION 814. Appointment of Authenticating Agent. At any time when any of
the Notes remain Outstanding the Trustee, with the approval of the Issuer, may
appoint an Authenticating Agent or Agents with respect to one or more series,
classes or tranches of Notes which will be authorized to act on behalf of the
Trustee to authenticate Notes of such series, classes or tranches issued upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 305, and Notes so authenticated will be entitled to the benefits of this
Indenture and will be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's certificate
of authentication, such reference will be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent will be acceptable to the Issuer and will at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as an Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and, if other than the Issuer itself,
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent will be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent will cease to be eligible in accordance with the provisions
of this Section, such Authenticating Agent will resign immediately in the manner
and with the effect specified in this Section. The initial Authenticating Agent
for the Notes of all series, classes and tranches will be Citibank, N.A.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
will be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, will continue to be an
Authenticating Agent, provided such corporation will be otherwise eligible under
this Section, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuer. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent will cease to be eligible in accordance with the provisions
of this Section, the Trustee, with the approval of the Issuer, may appoint a
successor Authenticating Agent which
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will be acceptable to the Issuer and will give notice to each Noteholder as
provided in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder will become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent will be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of the Issuer from time to time)
reasonable compensation for its services under this Section, and the Trustee
will be entitled to be reimbursed for such payments, subject to the provisions
of Section 807.
If an appointment with respect to one or more series, classes or tranches
is made pursuant to this Section, the Notes of such series, classes or tranches
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Notes of the series, classes or tranches designated
therein referred to in the within-mentioned Indenture.
[NAME OF INDENTURE TRUSTEE], as Trustee
By:_________________________
As Authenticating Agent
By:_________________________
Authorized Signatory
ARTICLE IX
Noteholders' Meetings, Lists, Reports by Trustee,
Issuer and Managing Beneficiary
SECTION 901. Issuer To Furnish Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Record Date, in
each year in such form as the Trustee may reasonably require, a list of the
names and addresses of the Registered Noteholders of such series, classes
or tranches as of such date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days before the time
such list is furnished,
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excluding from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
SECTION 902. Preservation of Information; Communications to Noteholders.
(a) The Trustee will preserve, in as current a form as is reasonably
practicable, the names and addresses of Registered Noteholders contained in the
most recent list furnished to the Trustee as provided in Section 901 and the
names and addresses of Registered Noteholders received by the Trustee in its
capacity as Note Registrar. The Trustee may destroy any list furnished to it as
provided in Section 901 upon receipt of a new list so furnished.
(b) If three or more Holders of Notes of any series, class or tranche
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Note of such series, class or tranche for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders of Notes of such series,
class or tranche or with the Holders of all Notes with respect to their rights
under this Indenture or under such Notes and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee will, within five Business Days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 902(a), or
(ii) inform such applicants as to the approximate number of Holders of
Notes of such series, class or tranche or all Notes, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 902(a), and as to the approximate
cost of mailing to such Noteholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee will elect not to afford such applicants access to such
information, the Trustee will, upon the written request of such applicants, mail
to each Holder of a 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 Trustee in accordance with Section
902(a), a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within five days after such tender, the
Trustee will mail to such applicants and file with the Commission, together with
a copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best interests
of the Holders of Notes of such series, class or tranche or all Noteholders, as
the case may be, or would be in violation of applicable law. Such written
statement will specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, will enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission will find, after notice and opportunity for hearing, that all the
objections so sustained have been met and will enter an
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order so declaring, the 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 Trustee will be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Notes, by receiving and holding the same, agrees with
the Issuer and the Trustee that neither the Issuer nor the Trustee will be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Notes in accordance with Section 902(b),
regardless of the source from which such information was derived, and that the
Trustee will not be held accountable by reason of mailing any material pursuant
to a request made under Section 902(b).
SECTION 903. Reports by Trustee. (a) The term "reporting date" as used in
this Section means September 30. Within 60 days after the reporting date in each
year, beginning in 2001, the Trustee will transmit to Noteholders, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such reporting date if required by Section 313(a) of the
Trust Indenture Act.
(b) To the extent required by the Trust Indenture Act, the Trustee will
mail each year to all Registered Noteholders, with a copy to the Rating Agencies
a report concerning:
(i) its eligibility and qualifications to continue as trustee under
this Indenture;
(ii) any amounts advanced by the Trustee under this Indenture;
(iii) the amount, interest rate and maturity date or indebtedness
owing by the Issuer to the Trustee in the Trustee's individual capacity;
(iv) the property and funds physically held by the Trustee as Trustee;
(v) any release or release and substitution of Collateral subject to
the lien of this Indenture which has not previously been reported; and
(vi) any action taken by the Trustee that materially affects the Notes
and that has not previously been reported.
(c) The Trustee will comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
(d) A copy of each such report will, at the time of such transmission to
Noteholders, be filed by the Trustee with each stock exchange upon which the
Notes are listed, and also with the Commission. The Issuer will notify the
Trustee when the Notes are admitted to trading on any national securities
exchange.
SECTION 904. Meetings of Noteholders; Amendments and Waivers. (a) The
Trustee may call a meeting of the Noteholders of a series, class or tranche at
any time. The Trustee will
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call a meeting upon request of the Issuer or the Holders of at least 10% in
aggregate Outstanding Dollar Principal Amount of the Outstanding Notes of such
series, class or tranche. In any case, a meeting will be called after notice is
given to the Noteholders pursuant to Section 106.
(b) Except for any consent that must be given by the Holders of each
Outstanding Note affected or any action to be taken by the Issuer as holder of
the Collateral Certificate, any resolution presented at any meeting at which a
quorum is present may be adopted by the affirmative vote of the Majority Holders
of that series, class or tranche, as the case may be. For any vote, request,
demand, authorization, direction, notice, consent, waiver or other action
provided by the Series 2000 Supplement to be given or taken by the holder of the
Collateral Certificate, any resolution presented at any meeting at which the
Majority Holders of all Outstanding Notes is present may be adopted by the
affirmative vote of the Majority Holders of all Outstanding Notes. However, any
resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the Holders of
not less than a specified percentage in aggregate Outstanding Dollar Principal
Amount of Outstanding Notes of a series, class or tranche or all Notes may be
adopted at any meeting at which a quorum is present only by the affirmative vote
of the Holders of not less than the specified percentage in aggregate
Outstanding Dollar Principal Amount of the Outstanding Notes of that series,
class or tranche or all Notes, as the case may be. Any resolution passed or
decision taken at any meeting of Noteholders duly held in accordance with this
Indenture will be binding on all Noteholders of the affected series, class or
tranche.
(c) The quorum at any meeting will be persons holding or representing a the
Majority Holders of a series, class or tranche or all Notes, as the case may be;
provided, however, that if any action is to be taken at that meeting concerning
a consent, waiver, request, demand, notice, authorization, direction or other
action that may be given by the Holders of not less than a specified percentage
in aggregate Outstanding Dollar Principal Amount of the Outstanding Notes of a
series, class or tranche or all Notes, as applicable, the persons holding or
representing such specified percentage in aggregate Outstanding Dollar Principal
Amount of the Outstanding Notes of such series, class or tranche or all Notes
will constitute a quorum.
(d) (i) The ownership of Registered Notes will be proved by the Note
Register. (ii) The Ownership of Bearer Notes will be proved as provided in
Section 104(c)(ii).
(e) The Issuer may make reasonable rules for other matters relating to
action by or a meeting of Noteholders not otherwise covered by this Section.
SECTION 905. Reports by Issuer to the Commission. The Issuer will:
(a) file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act; or, if the Issuer is not required to file information,
documents or reports
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pursuant to either of said Sections, then it will file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Issuer with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(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 terms
document, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 906. Reports by Trustee. The Trustee will report to the Issuer
with respect to the amount on deposit in the Accounts, and the identity of the
investments included therein, as the Issuer may from time to time reasonably
request which, absent the occurrence of an Event of Default hereunder, will not
occur more often than monthly.
SECTION 907. Monthly Issuer's Report. Each month, the Issuer will prepare,
in cooperation with the Servicer of the Master Trust, and deliver to the Trustee
an Issuer's Report, with a copy to the Rating Agencies.
SECTION 908. Payment Request to Master Trust. From time to time, the
Issuer will deliver a Payment Request to the Master Trust as necessary to
request the payments required or targeted to be made hereunder.
SECTION 909. Monthly Computation Statement. (a) Promptly after the receipt
by the Issuer of each Monthly Performance Statement under the Series 2000
Supplement, the Issuer, in cooperation with the Servicer of the Master Trust,
will compute the information required by a Monthly Computation Statement with
respect to the applicable Due Period. With respect to any Due Period when either
the Servicer of the Master Trust or the Managing Beneficiary is not an Affiliate
of a Seller, the Issuer will deliver a copy of a completed Monthly Computation
Statement for that Due Period to the Trustee.
(b) From time to time, the Issuer will notify the Servicer under the Series
2000 Supplement of the information necessary to be provided by the Issuer under
Section 5.01 of the
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Series 2000 Supplement to calculate the Invested Amount of the Collateral
Certificate and the Series 2000 Adjusted Invested Amount of the Collateral
Certificate.
ARTICLE X
Supplemental Indentures; Amendments to the Pooling and
Servicing Agreement and Amendments to the Trust Agreement
SECTION 1001. Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes, the Issuer and the Trustee, at
any time and from time to time, may amend this Indenture or enter into one or
more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(a) to evidence the succession of another Entity to the Issuer, and
the assumption by any such successor of the covenants of the Issuer herein
and in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender any right
or power herein conferred upon the Issuer, for the benefit of the Holders
of the Notes of any or all series, classes or tranches (and if such
covenants or the surrender of such right or power are to be for the benefit
of less than all series, classes or tranches of Notes, stating that such
covenants are expressly being included or such surrenders are expressly
being made solely for the benefit of one or more specified series, classes
or tranches); or
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; or
(d) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to in
Section 316(a)(2) of the TIA as in effect at the date as of which this
Indenture was executed or any corresponding provision in any similar
federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article II, and to
provide for the issuance of any series, class or tranche of Notes as
provided in Article III and to set forth the terms thereof, and/or to add
to the rights of the Holders of the Notes of any series, class or tranche;
or
(f) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or
more series, classes or tranches of Notes and to add to or change any of
the provisions of this Indenture as will be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 811; or
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(g) to add any additional Early Redemption Events or Events of Default
in respect of the Notes of any or all series, classes or tranches (and if
such additional Events of Default are to be in respect of less than all
series, classes or tranches of Notes, stating that such Events of Default
are expressly being included solely for the benefit of one or more
specified series, classes or tranches); or
(h) to provide for the consolidation of the Master Trust and the
Issuer into a single Entity after the termination of all series of Investor
Certificates (other than the Collateral Certificate); or
(j) if one or more additional Sellers under (and as defined in) the
Pooling and Servicing Agreement are added to the Pooling and Servicing
Agreement, or one or more additional Beneficiaries under the Trust
Agreement are added to the Trust Agreement, to make any necessary changes
to the Indenture or any other related document; or
(k) as set forth in Section 312(b); or
(l) to make any other amendment that could not reasonably be expected
to have an Adverse Effect.
No amendment of this Indenture or supplemental indenture for the purposes
identified in clauses (a), (b) or (c) may be entered into if to do so would
adversely affect in any material respect the interests of the Holders of Notes
of any series, class or tranche. Except for supplemental indentures entered into
for purposes identified in clause (e), no supplemental indenture under this
Section may be entered into except upon delivery of a Master Trust Tax Opinion
and an Issuer Tax Opinion and with written confirmation from each applicable
Rating Agency that there will be no Ratings Effect.
The Issuer may, without consent of the Noteholders, merge with the Master
Trust upon (i) written notice to the Trustee and each Rating Agency, (ii)
delivery by the Issuer to the Trustee of an Issuer Certificate to the effect
that the Issuer reasonably believes that such merger will not have an Adverse
Effect and is not reasonably expected to have an Adverse Effect at any time in
the future and (iii) delivery by the Issuer to the Trustee and the Rating
Agencies of a Master Trust Tax Opinion and an Issuer Tax Opinion.
SECTION 1002. Supplemental Indentures with Consent of Noteholders. With
written confirmation from each applicable Rating Agency that there will be no
Ratings Effect and the consent of the Majority Holders of the Outstanding Notes
of each series, class or tranche affected by such amendment of this Indenture or
supplemental indenture or indentures, by Act of said Holders delivered to the
Issuer and the Trustee, the Issuer and the Trustee may enter into an amendment
of this Indenture or indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Notes of each such series, class or tranche under this Indenture;
provided, however, that no such amendment or
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supplemental indenture will, without the consent of the Holder of each
Outstanding Note affected thereby:
(a) change the scheduled payment date of any payment of interest on
any Note, or change the Expected Principal Payment Date or Legal Maturity
Date of, any Note;
(b) reduce the stated principal amount of, or the interest rate on,
any Note; or change the method of computing the Outstanding Dollar
Principal Amount, the Adjusted Outstanding Dollar Principal Amount or the
Nominal Liquidation Amount in a manner that is adverse to the Holder of any
Note;
(c) reduce the amount of a Discount Note payable upon the occurrence
of an Early Redemption Event or other optional or mandatory redemption or
upon the acceleration of its Legal Maturity Date;
(d) impair the right to institute suit for the enforcement of any
payment on any Note;
(e) reduce the percentage in Outstanding Dollar Principal Amount of
the Outstanding Notes of any series, class or tranche, the consent of whose
Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or Section 718,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby;
(g) permit the creation of any lien or other encumbrance on the
Collateral that secures any tranche of Notes that is prior to the lien in
favor of the Holders of the Notes of such tranche;
(h) change any Place of Payment where any principal of, or interest
on, any Note is payable, unless otherwise provided in the applicable terms
document;
(i) change the method of computing the amount of principal of, or
interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 1001.
An amendment of this Indenture or supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series, class or
tranche of Notes, or which modifies the rights of the Holders of Notes of such
series, class or tranche with respect to such covenant or other
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provision, will be deemed not to affect the rights under this Indenture of the
Holders of Notes of any other series, class or tranche. No amendment or
supplemental indenture under this Section may be entered into except upon
delivery of a Master Trust Tax Opinion and an Issuer Tax Opinion and with
written confirmation from each applicable Rating Agency that there will be no
Ratings Effect.
It will not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed amendment or supplemental indenture,
but it will be sufficient if such Act will approve the substance thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any amendment of this Indenture or
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee will be entitled to receive,
and (subject to Section 801) will be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such amendment or supplemental
indenture is authorized or permitted by this Indenture and that all conditions
precedent thereto have been satisfied. The Trustee may, but will not (except to
the extent required in the case of an amendment or supplemental indenture
entered into under Section 1001(d) or 1001(f)) be obligated to, enter into any
such amendment or supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the execution of any
amendment of this Indenture or supplemental indenture under this Article, this
Indenture will be modified in accordance therewith with respect to each series,
class or tranche of Notes affected thereby, or all Notes, as the case may be,
and such amendment or supplemental indenture will form a part of this Indenture
for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder will be bound thereby to the extent
provided therein.
SECTION 1005. Conformity with Trust Indenture Act. Every amendment of this
Indenture or supplemental indenture executed pursuant to this Article will
conform to the requirements of the TIA as then in effect.
SECTION 1006. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any amendment of this
Indenture or supplemental indenture pursuant to this Article may, and will if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Issuer will so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Issuer, to any such amendment or supplemental indenture may be prepared
and executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Notes.
SECTION 1007. Amendments to the Pooling and Servicing Agreement. By their
acceptance of a Note, the Noteholders acknowledge that the Sellers and the
Master Trust Trustee may amend the Pooling and Servicing Agreement and any
supplement thereto without the consent of the Holders of any Investor
Certificates (including the Issuer) or any Noteholder, so long as
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such amendment or supplement would not materially adversely affect the interests
of the Holders of any Investor Certificates.
(a) For purposes of any vote or consent under the Pooling and Servicing
Agreement:
(i) that requires the consent or vote of each Investor
Certificateholder, each Noteholder will be treated as an Investor
Certificateholder under the Pooling and Servicing Agreement;
(ii) that requires the consent or vote of any series of Investor
Certificates, each series of Notes will be treated as a series of Investor
Certificates under the Pooling and Servicing Agreement; and
(iii) that requires the consent or vote of any class of Investor
Certificates, each class of Notes of a Single Issuance Series and each
tranche of Notes of a Multiple Issuance Series will be treated as a class
of Investor Certificates under the Pooling and Servicing Agreement.
SECTION 1008. Amendments to the Trust Agreement. (a) Without the consent
of the Holders of any Notes, the Issuer Trustee (at the written direction of the
Managing Beneficiary) and the Banks may amend the Trust Agreement so long as
such amendment will not adversely affect the interests of the Noteholders in any
material respect and the Rating Agencies confirm in writing that the amendment
will not cause a Ratings Effect.
(b) With written confirmation from each applicable Rating Agency that there
will be no Ratings Effect and the consent of the Holders of not less than
66 2/3% in Outstanding Dollar Principal Amount of the Outstanding Notes affected
by such amendment, by Act of said Holders delivered to the Master Trust Trustee,
the Banks and the Issuer Trustee (at the written direction of the Managing
Beneficiary) may amend the Trust Agreement for the purpose of adding, changing
or eliminating any provisions of the Trust Agreement or of modifying the rights
of those Noteholders.
SECTION 1009. Notice. If the Issuer, as holder of the Collateral
Certificate for the benefit of the Noteholders, receives a request for a consent
to any amendment, modification, waiver or supplement under this Indenture, the
Pooling and Servicing Agreement, the Trust Agreement or other document
contemplated herein, the Issuer will forthwith provide notice of such proposed
amendment, modification, waiver or supplement, as provided in Section 106 to
each Noteholder as of such date that is entitled to vote on a consent to such
matter and to each Rating Agency. The Issuer will request from such Noteholders
directions as to (i) whether or not the Issuer should take or refrain from
taking any action which the holder of the Collateral Certificate has the option
to direct, (ii) whether or not to give or execute any waivers, consents,
amendments, modifications or supplements as a holder of such Collateral
Certificate and (iii) how to vote the Collateral Certificate if a vote has been
called for with respect thereto; provided, that, in directing any action or
casting any vote or giving any consent as the holder of the Collateral
Certificate, the Issuer will vote or consent with respect to such Collateral
Certificate the
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applicable series, class or tranche, as the case may be, in the same proportion
as the Notes were actually voted by Holders thereof as notified by such
Noteholders to the Issuer at least two Business Days before the Issuer takes
such action or casts such vote or gives such consent.
ARTICLE XI
Representations, Warranties and Covenants of Issuer
SECTION 1101. Payment of Principal and Interest. With respect to each
series, class or tranche of Notes, the Issuer will duly and punctually pay the
principal of and interest on such Notes in accordance with their terms and this
Indenture, and will duly comply with all the other terms, agreements and
conditions contained in, or made in this Indenture for the benefit of, the Notes
of such series, class or tranche.
SECTION 1102. Maintenance of Office or Agency. The Issuer will maintain an
office, agency or Paying Agent in each Place of Payment where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If at any time the Issuer will fail to
maintain such office or agency or will fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Issuer hereby
appoints the Trustee its agent to receive all such presentations, surrenders,
notices and demands.
SECTION 1103. Money for Note Payments to be Held in Trust. The Paying
Agent, on behalf of the Trustee, will make distributions to Noteholders from the
Collection Account or other applicable Account pursuant to the provisions of
Article V of this Indenture or any supplement thereto and will report the
amounts of such distributions to the Trustee. Any Paying Agent will have the
revocable power to withdraw funds from the Collection Account or other
applicable Account for the purpose of making the distributions referred to
above. The Trustee may revoke such power and remove the Paying Agent if the
Trustee determines in its sole discretion that the Paying Agent has failed to
perform its obligations under this Indenture or any supplemental indenture in
any material respect. The Paying Agent upon removal will return all funds in its
possession to the Trustee.
The Issuer will cause each Paying Agent (other than the Trustee) for any
series, class or tranche of Notes to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee (and if the
Trustee acts as Paying Agent, it so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such series, class or tranche in trust for the benefit
of the Persons entitled thereto until such sums will be paid to such
Persons or otherwise disposed of as herein provided;
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(b) if such Paying Agent is not the Trustee, give the Trustee notice
of any default by the Issuer (or any other obligor upon the Notes of such
series, class or tranche) in the making of any such payment of principal or
interest on the Notes of such series, class or tranche;
(c) if such Paying Agent is not the Trustee, at any time during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent;
(d) immediately resign as a Paying Agent and, if such Paying Agent is
not the Trustee, forthwith pay to the Trustee all sums held by it in trust
for the payment of Notes if at any time it ceases to meet the standards
described in this Section required to be met by a Paying Agent at the time
of its appointment; and
(e) comply with all requirements of the Internal Revenue Code with
respect to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series, class or tranche of
Notes or for any other purpose, pay, or by Issuer Certificate direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying
Agent in respect of each and every series, class or tranche of Notes as to which
it seeks to discharge this Indenture or, if for any other purpose, all sums so
held in trust by the Issuer in respect of all Notes, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent will be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuer, in trust for the payment of the principal of or interest on any Note
of any series, class or tranche and remaining unclaimed for two years after such
principal or interest has become due and payable will be paid to the Issuer upon
request in an Issuer Certificate, or (if then held by the Issuer) will be
discharged from such trust; and the Holder of such Note will thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuer as trustee thereof, will thereupon cease. The
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuer give notice to the Holders of the Notes as to
which the money to be repaid was held in trust, as provided in Section 106, 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.
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The Issuer initially authorizes Citibank, N.A., to act as Paying Agent for
the Notes on its behalf. The Issuer may at any time and from time to time
authorize one or more Persons (including the Trustee) to act as Paying Agent in
addition to or in place of Citibank, N.A. with respect to any series, class or
tranche of Notes issued under this Indenture.
Each Paying Agent will at all times, have a combined capital and surplus of
at least $50,000,000, and be subject to supervision or examination by a United
States Federal or State authority or be regulated by or subject to the
supervision or examination of a governmental authority of a nation that is a
member of the Organization for Economic Co-operation and Development. If such
Paying Agent publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Paying Agent will be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
SECTION 1104. Statement as to Compliance. The Issuer will deliver to the
Trustee and the Rating Agencies, on or before April 30 of each year, beginning
in 2001, 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 1105. Legal Existence. The Issuer will do or cause to be done
all things necessary to preserve and keep in full force and effect its legal
existence.
SECTION 1106. Further Instruments and Acts. Upon request of the Trustee,
the Issuer will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 1107. Compliance with Laws. The Issuer will comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes or this Indenture.
SECTION 1108. Notice of Events of Default. The Issuer agrees to give the
Trustee and the Rating Agencies prompt written notice of each Event of Default
hereunder and each default
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on the part of the Master Trust or the Sellers of their respective obligations
under the Pooling and Servicing Agreement, and any default of a Derivative
Counterparty.
SECTION 1109. Certain Negative Covenants. The Issuer will not:
(a) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts withheld in
good faith from such payments under the Internal Revenue Code or other
applicable tax law);
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Secured Parties created by
this Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the Secured
Parties created by this Indenture) to be created on or extend to or
otherwise arise upon or burden the Collateral or any part thereof or any
interest therein or the proceeds thereof; or
(d) permit the lien in favor of the Secured Parties created by this
Indenture not to constitute a valid security interest in the Collateral; or
(e) voluntarily dissolve or liquidate.
SECTION 1110. No Other Business. The Issuer will not engage in any
business other than as permitted under the Trust Agreement.
SECTION 1111. No Borrowing. The Issuer will not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness for borrowed money except for the Notes.
SECTION 1112. Excluded Series. The Issuer will notify the Master Trust
with respect to each Due Period of the extent to which any series of Notes
constitutes an Excluded Series under the Series 2000 Supplement.
SECTION 1113. Rule 144A Information. For so long as any of the Notes of
any series, class or tranche are "restricted securities" within the meaning of
Rule 144(a)(3) under the Securities Exchange Act, the Issuer agrees to provide
to any Noteholder of such series, class or tranche and to any prospective
purchaser of Notes designated by such Noteholder, upon the request of such
Noteholder or prospective purchaser, any information required to be provided to
such Holder or prospective purchaser to satisfy the conditions set forth in Rule
144A(d)(4) under the Securities Exchange Act.
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ARTICLE XII
Early Redemption of Notes
SECTION 1201. Applicability of Article. Pursuant to the terms of this
Article, the Issuer will redeem and pay, provided that funds are available, each
affected series, class or tranche of Notes upon the occurrence of any Early
Redemption Event. Unless otherwise specified in the applicable terms document
creating a series, class or tranche of Notes, or in the form of Notes for such
series, class or tranche, the following are "Early Redemption Events":
(a) with respect to any tranche of Notes, the occurrence of the
Expected Principal Payment Date of such Notes;
(b) the occurrence of any Amortization Event as defined in the Pooling
and Servicing Agreement with respect to the Collateral Certificate;
(c) mandatory prepayment of the entire Collateral Certificate
resulting from a breach of a representation or warranty by the Banks under
the Pooling and Servicing Agreement;
(d) with respect to any tranche of Notes, at any time a Payment
Request with respect to a requested payment of Available Investor Principal
Collections has been issued with respect to such tranche of Notes, the
Portfolio Yield (as defined in the Pooling and Servicing Agreement) for any
Due Period will be less than the Weighted Average Interest Rates for all
tranches of Notes of that Group as of the last day of such Due Period;
(e) the amount of Surplus Finance Charge Collections averaged over any
three consecutive Due Periods will be less than the Required Surplus
Finance Charge Amount for the last of such three consecutive Due Periods;
(f) the Issuer becomes an investment company within the meaning of the
Investment Company Act;
(g) with respect to any tranche of Notes (other than a tranche of RSP
Notes) that has funds on deposit in a Principal Funding sub-Account, with
respect to any Due Period, the product of
(i) the total amount of Principal Receivables in the Master Trust
as of the last day of such Due Period,
(ii) the Series 2000 Allocation Percentage (as defined in the
Series 2000 Supplement) for such Due Period, expressed as a decimal,
and
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(iii) the difference of 100% minus the Floating Allocation
Percentage (as defined in the Series 2000 Supplement) for such Due
Period, expressed as a decimal,
will fail to equal at least the amount on deposit in the Principal Funding
Account of all tranches of Notes (other than tranches of RSP Notes) as of
the last day of such Due Period; or
(h) with respect to any series, class or tranche of Notes, any
additional Early Redemption Event specified in the terms document for such
series, class or tranche as applying to such series, class or tranche, or
specified in the form of Note for such series, class or tranche.
The redemption price of a tranche of Notes so redeemed will equal the
Outstanding Dollar Principal Amount of such tranche, plus interest accrued and
unpaid or principal accreted and unpaid on such tranche to but excluding the
date of redemption, the payment of which will be subject to Article V.
If the Issuer is unable to pay the redemption price in full on the Monthly
Principal Date following the end of the Due Period in which the Early Redemption
Event occurs, monthly payments on such tranche of Notes will thereafter be made
on each following Monthly Principal Date until the Outstanding Dollar Principal
Amount of such tranche, plus all accrued and unpaid interest, is paid in full or
the Legal Maturity Date occurs, whichever is earlier, subject to Article V. Any
funds in the Principal Funding Account, the Interest Funding Account and, in the
case of Class C Notes, the Class C Reserve Account for a redeemed tranche will
be applied to make the principal and interest payments on that tranche on the
redemption date, subject to Article V. Principal payments on redeemed tranches
will be made first to the Class A Notes until paid in full, then to the Class B
Notes until paid in full and finally to the Class C Notes until paid in full.
SECTION 1202. Optional Repurchase. (a) Unless otherwise provided in the
applicable terms document for a tranche of Notes, the Issuer has the right, but
not the obligation, to redeem a tranche of Notes of a Multiple Issuance Series
in whole but not in part on any day on or after the day on which the aggregate
Nominal Liquidation Amount of such tranche is reduced to less than 5% of its
Initial Dollar Principal Amount; provided, however, that if such tranche of
Notes is of a subordinated class, the Issuer will not redeem such Notes if it
will leave the senior classes of Notes of that series with less than the
applicable Required Subordinated Amount. If the Issuer elects to redeem a
tranche of Notes of a Multiple Issuance Series, it will notify the Holders of
such redemption at least 30 days prior to the redemption date. The redemption
price of a tranche so redeemed will equal the Outstanding Dollar Principal
Amount of such tranche, plus interest accrued and unpaid or principal accreted
and unpaid on such tranche to but excluding the date of redemption, the payment
of which will be subject to Article V.
(b) Unless otherwise provided in the applicable terms document for a series
of Notes of a Single Issuance Series, the Issuer has the right, but not the
obligation, to redeem Notes of a Single Issuance Series in whole but not in part
on any day on or after the day on which the
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aggregate Nominal Liquidation Amount of such series is reduced to less than 5%
of its Initial Dollar Principal Amount. If the Issuer elects to redeem Notes of
a Single Issuance Series, it will notify the Holders of such redemption at least
30 days prior to the redemption date. The redemption price of a series so
redeemed will equal the Outstanding Dollar Principal Amount of such series, plus
interest accrued and unpaid or principal accreted and unpaid on such tranche to
but excluding the date of redemption, the payment of which will be subject to
Article V.
If the Issuer is unable to pay the redemption price in full on the
redemption date, monthly payments on such tranche of Notes will thereafter be
made until the Outstanding Dollar Principal Amount of such tranche, plus all
accrued and unpaid interest, is paid in full or the Legal Maturity Date occurs,
whichever is earlier, subject to Article V. Any funds in the Principal Funding
Account, the Interest Funding Account and, in the case of Class C Notes, the
Class C Reserve Account for a redeemed tranche will be applied to make the
principal and interest payments on that tranche on the redemption date, subject
to Article V. Principal payments on redeemed tranches will be made first to the
Class A Notes until paid in full, then to the Class B Notes until paid in full
and finally to the Class C Notes until paid in full.
SECTION 1203. Notice. Promptly after the occurrence of any Early
Redemption Event or a redemption pursuant to Section 1202, the Issuer will
notify the Trustee and the Rating Agencies in writing of the identity, stated
principal amount and Outstanding Dollar Principal Amount of the affected series,
class or tranche of Notes to be redeemed. Notice of redemption will promptly be
given as provided in Section 106. All notices of redemption will state (a) the
date on which the redemption of the applicable series, class or tranche of Notes
pursuant to this Article will begin, (b) the redemption price for such series,
class or tranche of Notes, which will be equal to the Outstanding Dollar
Principal Amount of such series, class or tranche plus interest accrued or
principal accreted and unpaid (if any), the payment of which will be subject to
Article V and (c) the series, class or tranche of Notes to be redeemed pursuant
to this Article.
ARTICLE XIII
Collateral
SECTION 1301. Recording, Etc. (a) The Issuer intends the Security Interest
granted pursuant to this Indenture in favor of the Secured Parties to be prior
to all other liens in respect of the Collateral. Subject to Section 1303, the
Issuer will take all actions necessary to obtain and maintain a perfected lien
on and security interest in the Collateral in favor of the Secured Parties. The
Issuer will from time to time execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance
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and other instruments, all as prepared by the Issuer, and will take such other
action necessary or advisable to:
(i) grant a Security Interest more effectively in all or any portion
of the Collateral;
(ii) maintain or preserve the Security Interest (and the priority
thereof) created by this Indenture or carry out more effectively the
purposes hereof;
(iii) perfect, publish notice of or protect the validity of any grant
made or to be made by this Indenture;
(iv) enforce the Collateral Certificate, the Derivative Agreements and
each other instrument or agreement included in the Collateral;
(v) preserve and defend title to the Collateral and the rights of the
Secured Parties in such Collateral against the claims of all persons and
parties; or
(vi) pay all taxes or assessments levied or assessed upon the
Collateral when due.
(b) The Issuer will from time to time promptly pay and discharge all
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Indenture, any amendments thereto and any other
instruments of further assurance. The Issuer hereby designates the Trustee its
agent and attorney-in-fact to execute, upon the Issuer's failure to do so, any
financing statement, continuation statement or other instrument required by the
Trustee pursuant to this Section.
(c) Without limiting the generality of clauses (a)(ii) or (a)(iii):
(i) The Issuer will cause this Indenture, all amendments and
supplements hereto and/or all financing statements and continuation
statements and any other necessary documents covering the Secured Parties'
right, title and interest to the Collateral to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law
fully to preserve and protect the right, title and interest of the Trustee
and the other Secured Parties to all property comprising the Collateral.
The Issuer will deliver to the Trustee file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as provided above,
as soon as available following such recording, registration or filing.
(ii) Within 30 days after the Issuer makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (d)(i) seriously
misleading within the meaning of Section 9-402(7) (or any comparable
provision) of the UCC, the Issuer will give the Trustee notice of any such
change and will file such financing statements or amendments as may be
necessary to continue the perfection of the Secured Parties' security
interest in the Collateral.
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(d) The Issuer will give the Trustee prompt notice of any relocation
of its principal executive office and whether, as a result of such
relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation
statement or of any new financing statement and will file such financing
statements or amendments as may be necessary to perfect or to continue the
perfection of the Secured Parties' security interest in the Collateral. The
Issuer will at all times maintain its principal executive offices within
the United States.
(e) The duty of the Trustee to execute any instrument required pursuant to
this Section will arise only if the Trustee has knowledge of the type described
in Section 701(c) of any default of the Issuer in complying with the provisions
of this Section.
SECTION 1302. Trust Indenture Act Requirements. The release of any
Collateral, from the lien created by this Indenture or the release of, in whole
or in part, such liens, will not be deemed to impair the Security Interests in
contravention of the provisions hereof if and to the extent the Collateral or
liens are released pursuant to the terms hereof. The Trustee and each of the
other Secured Parties acknowledge that a release of Collateral or liens strictly
in accordance with the terms hereof will not be deemed for any purpose to be an
impairment of the Security Interests in contravention of the terms of this
Indenture. To the extent applicable, without limitation, the Issuer and each
other obligor on the Notes will cause TIA (S) 314(d) relating to the release of
property or securities from the liens hereof to be complied with. Any
certificate or opinion required by TIA (S) 314(d) may be made by an officer of
the appropriate obligor, except in cases in which TIA (S) 314(d) requires that
such certificate or opinion be made by an independent person.
SECTION 1303. Suits To Protect the Collateral. Subject to the provisions
of this Indenture, the Trustee will have power to institute and to maintain such
suits and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts which may be unlawful or in violation of this Indenture,
and such suits and proceedings as the Trustee may deem expedient to preserve or
protect their interests and the interests of the Trustee and the Holders of the
Notes in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the Security Interests or be prejudicial to the
interests of the Holders of the Notes or the Trustee). No counterparties to a
Derivative Agreement may direct the Trustee to enforce the Security Interest.
Each counterparty's rights consist solely of the right to receive Collections
allocated for its benefit pursuant to Article V.
SECTION 1304. Purchaser Protected. In no event will any purchaser in good
faith of any property purported to be released hereunder be bound to ascertain
the authority of the Trustee to execute the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor will any purchaser or other
transferee of any property or rights permitted by this Article to be sold be
under any obligation to
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ascertain or inquire into the authority of the Issuer or any other obligor, as
applicable, to make any such sale or other transfer.
SECTION 1305. Powers Exercisable by Receiver or Trustee. In case the
Collateral will be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article upon the Issuer or any other
obligor, as applicable, with respect to the release, sale or other disposition
of such property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee will be deemed the equivalent of any similar
instrument of the Issuer or any other obligor, as applicable, or of any officer
or officers thereof required by the provisions of this Article.
SECTION 1306. Determinations Relating to Collateral. In the event (i) the
Trustee will receive any written request from the Issuer or any other obligor
for consent or approval with respect to any matter or thing relating to any
Collateral or the Issuer's or any other obligor's obligations with respect
thereto or (ii) there will be due to or from the Trustee under the provisions
hereof any performance or the delivery of any instrument or (iii) the Trustee
will become aware of any nonperformance by the Issuer or any other obligor of
any covenant or any breach of any representation or warranty of the Issuer or
any other obligor set forth in this Indenture, then, in each such event, the
Trustee will be entitled to hire experts, consultants, agents and attorneys to
advise the Trustee on the manner in which the Trustee should respond to such
request or render any requested performance or response to such nonperformance
or breach (the expenses of which will be reimbursed to the Trustee pursuant to
Section 807). The Trustee will be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or attorney or
agreed to by the Majority Holders of the Outstanding Notes.
SECTION 1307. Release of Collateral. (a) Subject to the payment of its
fees and expenses pursuant to Section 807, the Trustee will, at the request of
the Issuer or when otherwise required by the provisions of this Indenture,
execute instruments to release property from the lien of this Indenture, or
convey the Trustee's interest in the same, in a manner and under circumstances
which are not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Trustee as provided in this Article
will be bound to ascertain the Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any funds.
(b) Upon delivery of an Issuer Certificate certifying that the Issuer's
obligations under this Indenture have been satisfied and discharged by complying
with the provisions of this Article, the Trustee will (i) execute and deliver
such releases, termination statements and other instruments (in recordable form,
where appropriate) as the Issuer or any other obligor, as applicable, may
reasonably request evidencing the termination of the Security Interests created
by this Indenture and (ii) not be deemed to hold the Security Interests for the
benefit of the Secured Parties.
(c) The Banks and the Noteholders will be entitled to receive at least 10
days written notice when the Trustee proposes to take any action pursuant to
clause (a), accompanied by copies of any instruments involved, and the Trustee
will also be entitled to require, as a condition to such action, an Opinion of
Counsel, stating the legal effect of any such action, outlining the
124
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with. Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to the
Trustee in connection with any such action.
SECTION 1308. Certain Actions by Trustee. Any action taken by the Trustee
pursuant to this Article in respect of the release of Collateral will be taken
by the Trustee as its interest in such Collateral may appear, and no provision
of this Article is intended to, or will, excuse compliance with any provision
hereof.
SECTION 1309. Opinions as to Collateral. (a) On the Effective Date, the
Issuer will furnish to the Trustee an Opinion of Counsel either stating that, in
the opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental hereto, and
any other requisite documents, and with respect to the execution and filing of
any financing statements and continuation statements, as are necessary to
create, continue, perfect and maintain the Security Interest granted by this
Indenture in favor of the Secured Parties and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to do so.
(b) On or before March 31 in each calendar year, beginning in 2001, the
Issuer will furnish to the Trustee an Opinion of Counsel with respect to each
Uniform Commercial Code financing statement which has been filed by the Issuer
either stating that, (i) in the opinion of such counsel, such action has been
taken with respect to the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any financing statements and
continuation statements as is necessary to maintain the lien and Security
Interest created by this Indenture and reciting the details of such action or
(ii) in the opinion of such counsel no such action is necessary to maintain such
lien and Security Interest. Such Opinion of Counsel will also describe the
recording, filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the lien and Security Interest
of this Indenture until March 31 in the following calendar year.
SECTION 1310. Delegation of Duties. The Issuer may contract with or
appoint other Persons (including the Banks and their Affiliates) to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Trustee in an Issuer Certificate will be deemed to
be action taken by the Issuer.
125
ARTICLE XIV
Miscellaneous
SECTION 1401. No Petition. The Trustee, by entering into this Indenture,
each Derivative Counterparty, by designating that the obligations of the Issuer
pursuant to the applicable Derivative Agreement are secured by the Collateral,
and each Noteholder, by accepting a Note, agrees that it will not at any time
institute against the Banks or the Issuer, or join in any institution against
the Banks or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any Derivative Agreement.
SECTION 1402. Trust Obligations. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer on the Notes or under
this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Issuer Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of the
Issuer Trustee in its individual capacity, any holder of a beneficial interest
in the Issuer or the Issuer Trustee or of any successor or assign of the Issuer
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Issuer Trustee has no such obligations in
its individual capacity).
SECTION 1403. Limitations on Liability. (a) It is expressly understood and
agreed by the parties hereto that (i) this Indenture is executed and delivered
by the Managing Beneficiary not individually or personally but solely as
Managing 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 personal
representations, undertakings and agreements by the Managing Beneficiary but is
made and intended for the purpose of binding only the Issuer, (iii) nothing
herein contained will be construed as creating any liability on the Managing
Beneficiary individually or personally, to perform any covenant of the Issuer
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to this Indenture and by any Person claiming by,
through or under them and (iv) under no circumstances will the Managing
Beneficiary 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) Neither the Issuer Trustee nor the Banks, nor any other beneficiary of
the Issuer nor any of their respective officers, directors, employers or agents
will have any liability with respect to this Indenture, and recourse may be had
solely to the Collateral pledged to secure the Notes issued by Citibank Credit
Card Issuance Trust.
SECTION 1404. Notes Treated as Debt. The Issuer and the Noteholders
agree that the Notes are intended to be debt of the Banks for federal, state and
local income and franchise tax
126
purposes and agree to treat the Notes accordingly for all such purposes, unless
otherwise required by a taxing authority.
SECTION 1405. Actions Taken by the Issuer. Any and all actions that are to
be taken by the Issuer will be taken by either the Managing Beneficiary or the
Issuer Trustee on behalf of the Issuer.
SECTION 1406. Derivative Counterparty as Third-Party Beneficiary. Each
Derivative Counterparty is a third-party beneficiary of this Indenture to the
extent specified in the applicable Derivative Agreement or terms document.
127
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CITIBANK CREDIT CARD ISSUANCE TRUST,
by CITIBANK (SOUTH DAKOTA), N.A., as Managing
Beneficiary
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
Attest:
/s/ Xxxxx X. Xxxxxxx
--------------------
BANKERS TRUST COMPANY, as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
Vice President
Attest:
/s/ Xxxxx Xxxxx Plein
---------------------
STATE OF SOUTH DAKOTA )
) ss:
COUNTY OF MINNEHAHA )
On September 26, 2000, before me personally came Xxxxxxx X. Xxxxxxxx, to
me known, who, being by me duly sworn, did depose and say that he resides at
000 Xxxx 00xx Xxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000; and that he is a Vice
President of Citibank (South Dakota), N.A., not acting in its individual
capacity but solely as Managing Beneficiary of Citibank Credit Card Issuance
Trust, one of the parties described in and which executed the above instrument.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Notary Public
[Notarial Seal]
My commission expires: April 1, 0000
XXXXX XX XXX XXXX )
) ss:
COUNTY OF NEW YORK )
On September 26, 2000, before me personally came Xxxxxxx X. Xxxxxxx, to
me known, who, being by me duly sworn, did depose and say that he resides at 0
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; and that he is a Vice President of Bankers
Trust Company, not acting in its individual capacity but solely as Trustee, one
of the parties described in and which executed the above instrument.
/s/ E. Xxxxxxxx Xxxxxxxx III
----------------------------
E. Xxxxxxxx Xxxxxxxx III
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires March 27, 2001
[Notarial Seal]
ANNEX I
Threshold Conditions
--------------------
Characteristics of Tranches of Notes
Not Needing Separate Tax Opinions
on Issuance Date
1. At the time of issuance, the tranche of Notes will be rated no lower than
the following ratings categories by at least one Rating Agency:
Note Rating
--------- ------------------------------------
Class A AAA or its equivalent for
long-term Notes, or A-1+/P-1
or its equivalent for
commercial paper Notes
Class B A or its equivalent
Class C BBB or its equivalent
2. The tranche of Notes does not have a yield (based on its initial yield in
the case of a tranche of floating rate Notes) in excess of the yield of
United States Treasury obligations for a comparable maturity plus 500 basis
points.
3. The Initial Dollar Principal Amount of the tranche of Notes is less than
$500,000,000 for Class A Notes, $250,000,000 for Class B Notes, or
$250,000,000 for Class C Notes.
4. The Expected Principal Payment Date of the tranche of Notes is no more than
ten years after the issuance date for Class B Notes or Class C Notes, or
twelve years after the issuance date for Class A Notes.
5. The tranche of Notes has a single Expected Principal Payment Date on which
all principal of that tranche is expected to be paid.
6. The Legal Maturity Date of the tranche of Notes is no more than two years
after its Expected Principal Payment Date.
7. Unless the Expected Principal Payment Date of the tranche of Notes is
within one year of the issuance date, all interest is payable at least
annually.
8. If the tranche of Notes does not bear interest at a single fixed rate, the
tranche bears interest at a floating rate, reset at least annually, equal
to (i) 100% of a single market-based interest index such as LIBOR, the
federal funds rate, or the prime rate, (ii) plus or minus a single fixed
spread, if desired, and (iii) subject to a single fixed cap and/or single
fixed floor, if desired. However, the interest rate for the first period
may be set at a rate approximating the rate that would be set by the
formula.
9. No payments of principal of or interest on the tranche of Notes are subject
to any contingencies other, with respect to principal, than the
availability of funds pursuant to the Indenture and subordination.
10. The issuance price of the tranche of Notes is at least 90% of the principal
amount, and no more than 102% of the principal amount.
11. The Notes of the tranche are in registered (not bearer) form.
12. Provisions for payments of the tranche of Notes after an Event of Default
relating to a Derivative Agreement are as described in base Prospectus
contained in the original effective registration statement filed with
respect to the Notes.
13. At the time of issuance of the tranche of Notes, as to then Outstanding
Notes or outstanding Master Trust investor certificates, (i) no Notes or
Master Trust investor certificates have been downgraded (and continue to
have the downgraded rating) or are on credit watch with negative
implications by any Rating Agency that rates the Notes or the Master Trust
investor certificates; (ii) no series or class of Master Trust investor
certificates has had an Early Amortization Event (as defined in the Pooling
and Servicing Agreement), and no event has occurred that, with the passage
of time, would become an Early Amortization Event of any series or class of
Master Trust investor certificates; (iii) no series, class or tranche of
Notes has had an Early Redemption Event or Event of Default, and no event
has occurred that, with the passage of time, would become an Early
Redemption Event or Event of Default of any series, class or tranche of
Notes; (iv) no unreimbursed draws have been made on any reserve account or
cash collateral account for the benefit of any tranche of Notes or series
of Master Trust investor certificates; and (v) neither the Issuer nor the
Master Trust is in default of any payment owed by it to a Derivative
Counterparty or other derivative counterparty or third-party enhancer;
provided, however, that clauses (i), (ii), (iii) and (iv) will not apply if
(x) the event described therein is due solely to the credit of a Derivative
Counterparty or other derivative counterparty or third-party enhancer
and/or the default of such Person in a payment obligation to the Issuer or
the Master Trust, and (y) such Person is not a Derivative Counterparty,
other derivative counterparty or third-party enhancer with respect to the
new issuance of Notes.
14. The tranche of Notes has no material terms not described in the base
Prospectus contained in the original effective registration statement filed
with respect to the Notes, and that
2
tranche's subordination features, acceleration provisions and remedies are
as described in that Prospectus.
15. The tranche of Notes meet any other conditions that may be added from time
to time by a Rating Agency then rating the Notes of the Issuer.
Any of the foregoing conditions may be eliminated or relaxed with the consent of
the Rating Agencies then rating the Notes.
3
EXHIBIT A
[FORM OF] PAYMENT REQUEST
From: Citibank (South Dakota), N.A., as
Series 2000 Certificate
Representative under the Series 2000
Supplement and as Managing
Beneficiary of the Citibank Credit
Card Issuance Trust
To: Citibank (South Dakota), N.A., as
Servicer under Citibank Credit Card
Master Trust I
Date:
Citibank Credit Card Master Trust I
Series 2000 Certificates
Due Period ending , 20
Reference is made to the Series 2000 Supplement, dated as of September 26, 2000
(as amended, supplemented and otherwise modified, the "Series 2000 Supplement"),
among Citibank (South Dakota), N.A., as Seller and Servicer, Citibank (Nevada),
National Association, as Seller, and Bankers Trust Company, as Trustee on be
half of the Certificateholders, and the Indenture, dated as of September 26,
2000 (as amended, supplemented and otherwise modified, the "Indenture"), among
Citibank Credit Card Issuance Trust, as Issuer, and Bankers Trust Company, as
Trustee on behalf of the Noteholders. Terms used herein have the meanings
provided in the Series 2000 Supplement or the Indenture, as applicable.
The Series 2000 Certificate Representative requests the following payments with
respect to the Series 2000 Certificates be made on the following dates:
A. Allocations of Investor Finance Charge Collections available pursuant to
Section 4.02 of the Series 2000 Supplement.
1. Required pursuant to Section 501(a) of the Indenture (to pay accrued
and unpaid fees and expenses of, and other amounts due to, the
Indenture Trustee pursuant to Section 807 of the Indenture, to be paid
as soon as practicable after the end of the applicable Due
Period)............................................................... $________
2. Required pursuant to Section 501(b) of the Indenture (to make the
targeted deposits to the Interest Funding Account pursuant to Section
503 of the Indenture, to be paid on the applicable Interest Deposit
Date)
--------------------------------------------------------
Tranche Monthly Interest Date Amount
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
Total............$________
3. Required pursuant to Section 501(d) of the Indenture (to increase the
Invested Amount of the Series 2000 Certificate or reimburse any
Receivables Sales Proceeds Deposit Deficit pursuant to Section 527 of
the Indenture, to be paid to the Servicer as soon as practicable after
the end of the applicable Due Period)....$________
4. Required pursuant to Section 501(c) of the Indenture (to make the
targeted deposits to the Class C Reserve Account pursuant to Section
518 of the Indenture, on the applicable Monthly Interest Date)
--------------------------------------------------------
Tranche Monthly Interest Date Amount
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
Total............$___________
5. Required pursuant to Section 501(e) of the Indenture (to make any
other payment or deposit required by the terms document of any series,
class or tranche of Notes)
--------------------------------------------------------
Tranche Monthly Interest Date Amount
--------------------------------------------------------
$
--------------------------------------------------------
2
--------------------------------------------------------
Tranche Monthly Interest Date Amount
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
Total............................$________
6. Balance of the Investor Finance Charge Collections to be paid to the
Issuer pursuant to Section 501(f) of the Indenture as soon as
practicable after the end of the applicable Due Period...$________
B. Allocations of Available Investor Principal Collections available pursuant
to Section 4.02 of the Series 2000 Supplement.
1. Required pursuant to Section 502(a) of the Indenture (to be
reallocated to pay deficiencies in targeted deposits to the Interest
Funding Account pursuant to A2, subject to the limitations set forth
in the Indenture, to be paid on the applicable Interest Deposit Date)
--------------------------------------------------------
Tranche Monthly Interest Date Amount
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
Total............$___________
2. Required pursuant to Section 502(b) of the Indenture (to make the
targeted deposits to the Principal Funding Account pursuant to Section
508 of the Indenture, to be paid on the applicable Principal Deposit
Date)
--------------------------------------------------------
Tranche Monthly Interest Date Amount
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
$
--------------------------------------------------------
3
--------------------------------------------------------
Tranche Monthly Interest Date Amount
--------------------------------------------------------
$
--------------------------------------------------------
Total............$___________
4
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Payment Request on , 20 .
CITIBANK CREDIT CARD ISSUANCE TRUST, as
Issuer
By: CITIBANK (SOUTH DAKOTA), N.A., as
Series 2000 Certificate Representative
and as Managing Beneficiary
By: __________________________
Name:
Title:
By: CITIBANK (SOUTH DAKOTA), N.A., as
Servicer
By: __________________________
Name:
Title:
5
EXHIBIT B
[FORM OF] MONTHLY COMPUTATION STATEMENT
Date:
Citibank Credit Card Master Trust I
Series 2000 Certificate
Due Period ending , 20
Reference is made to the Series 2000 Supplement, dated as of September 26, 2000
(as amended, supplemented and otherwise modified, the "Series 2000 Supplement"),
among Citibank (South Dakota), N.A., as Seller and Servicer, Citibank (Nevada),
National Association, as Seller, and Bankers Trust Company, as Trustee on be
half of the Certificateholders, and the Indenture, dated as of September 26,
2000 (as amended, supplemented and otherwise modified, the "Indenture"), among
Citibank Credit Card Issuance Trust, as Issuer and Bankers Trust Company, as
Trustee on behalf of the Noteholders. Terms used herein have the meanings
provided in the Series 2000 Supplement or the Indenture, as applicable.
The following computations are as of the end of the Due Period ending ,
20 (the "applicable Due Period"):
A. Increases in the components of the Series 2000 Invested Amount, the Series
Adjusted Invested Amount for Series 2000 and the principal amount of the
Series 2000 Certificates, as of the end of the applicable Due Period
1. The cumulative sum of the Initial Dollar Principal Amount of each
tranche of Notes as of the end of the applicable Due Period pursuant
to Section 5.01(a)(x)(i) of the Series 2000 Supplement and clause (a)
of the definition of "Nominal Liquidation Amount" in the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total................................. $________
2(a). The cumulative sum of accretions of principal on Discount Notes
targeted to be deposited in the Interest Funding Account pursuant to
Section 503(f) of the Indenture and Section 5.01(a)(x)(ii)(A) of the
Series 2000 Supplement, whether or not actually deposited and paid by
the Issuer to the Master Trust pursuant to Sections 507(b)
and 520(a) of the Indenture for reinvestment in the Series 2000
Invested Amount pursuant to Sections 4.03(e)
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
2(b). The cumulative sum of accretions of principal on Discount Notes
actually paid by the Issuer to the Master Trust for reinvestment in
the Series 2000 Invested Amount pursuant to Sections 4.03(e) and
5.01(a)(x)(ii)(B) of the Series 2000 Supplement and Sections 5.07(b)
and 520(a) of the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
3. The cumulative sum of principal collections paid by the Issuer to the
Master Trust for reinvestment in the Series 2000 Invested Amount
pursuant to Sections 4.03(f) and 5.01(a)(x)(iii) of the Series 2000
Supplement and Sections 502(a) and 520(c) of the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
4. The cumulative sum of reimbursements of Series 2000 Invested Amount
Deficit from Allocable Miscellaneous Payments retained by the Master
Trust for reinvestment in the Series 2000 Invested Amount pursuant to
Sections 4.03(b)(i) and 5.01(a)(x)(iv) of the Series 2000 Supplement
and Section 527(e)(i) of the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
2
5. The cumulative sum of reimbursements of Series 2000 Invested Amount
Deficit made pursuant to Sections 4.02(a)(ii)(C), 4.03(c) and
5.01(a)(x)(v) of the Series 2000 Supplement and Sections 520(b) and
527(f)(i) of the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
B. Decreases in the components of the Series 2000 Invested Amount, the Series
Adjusted Invested Amount for Series 2000, and the principal amount of the
Series 2000 Certificates as of the end of the applicable Due Period
1(a). The cumulative sum of all Principal Collections paid to the Issuer
pursuant to Section 4.02(b)(ii) or Section 4.02(c)(ii) of the Series
Supplement which are reallocated pursuant to Section 502(a) of the
Indenture and Section 5.01(a)(y)(i) of the Series 2000 Supplement to
make targeted deposits to the Interest Funding Account
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
1(b). The cumulative sum of all Principal Collections paid to the Issuer
pursuant to Section 4.02(b)(ii) or Section 4.02(c)(ii) of the Series
Supplement which are reallocated pursuant to Section 502(a) of the
Indenture and Section 5.01(a)(y)(i) of the Series 2000 Supplement to
make targeted deposits to the Interest Funding Account that in each
case resulted in a reduction of the Nominal Liquidation Amount of
Notes that were Revolving Notes at the time of such reduction
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
2(a). The cumulative sum of all payments of Principal Collections paid to
the Issuer (other than those referred to in item B1 above)
3
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
2(b). With respect to all tranches of Notes that were Revolving Notes at
the time of such payment, the cumulative sum of all payments of
principal collections to the Issuer (other than those referred to in
item B1 above) on deposit in the Principal Funding Account or
withdrawn from the Principal Funding Account pursuant to Section
511(a), (b) or (c) of the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
3. With respect to each tranche of RSP Notes, an aggregate amount equal
to the Nominal Liquidation Amount of each such tranche immediately
before giving effect to the applicable sale of Receivables pursuant to
Sections 4.01(a)(y)(iii) 7.03 of the Series 2000 Supplement and
Section 523 of the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
4(a). Investor Charge-Offs allocated to the Series 2000 Certificate
pursuant to Sections 4.03(a) and 5.02(a)(y)(iv) of the Series 2000
Supplement, to the extent that such Investor Charge-Offs reduce the
aggregate Nominal Liquidation Amount of the Notes pursuant to Section
526(e)(i) of the Indenture
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
4(b). Investor Charge-Offs allocated to the Series 2000 Certificate
pursuant to Sections 4.03(a) and 5.02(a)(y)(iv) of the Series 2000
Supplement, to the
4
extent that such Investor Charge-Offs reduce the aggregate Nominal
Liquidation Amount of the Notes pursuant to Section 526(e)(i) of the
Indenture that were Revolving Notes at the time of such reduction
From all prior Due Periods............ $________
From the applicable Due Period........ $________
Total............................................ $________
C. Series 2000 Invested Amount and aggregate Nominal Liquidation
Amount of the Notes (sum of Items A1, A2(b), A3, A4 and A5, less
Items B1(a), B2(a), B3 and B4(a)) $________
D. Series 2000 Adjusted Invested Amount (sum of Items A1, A2(b), A3,
A4 and A5, less Items B1(b), B2(b), B3 and B4(b)) $________
E. 1. Principal amount of the Series 2000 Certificates and
aggregate Adjusted Outstanding Principal Amount of the Notes
(sum of Items A1, A2(a) and A3, less Item B2(a)) (but
subject to Section 5.01(b) of the Series 2000 Supplement)... $________
2. Aggregate amount on deposit in the Principal Funding Account.$________
3. Aggregate Outstanding Dollar Principal Amount of the Notes
(sum of Items E1 and E2).....................................$________
F. Amount of Finance Charge Collections (and amounts to be treated
as Finance Charge Collections) available pursuant to Section
501(d) of the Indenture to fund Class C Reserve sub-Accounts......$________
G. Portion of the Series 2000 Invested Amount to be considered as an
Excluded Series...................................................$________
H. The aggregate amount on deposit in the Principal Funding Account
for each tranche of Notes, other than any tranche of RSP Notes
(equal to the designated portion of the Sellers Interest)........$________
5
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Monthly Computation Statement on , 20 .
CITIBANK (SOUTH DAKOTA), N.A., Servicer of
Citibank Credit Card Master Trust I,
By:_________________________________
Name:
Title:
CITIBANK CREDIT CARD ISSUANCE TRUST, as
Issuer
By: CITIBANK (SOUTH DAKOTA), N.A., as
Series 2000 Certificate Representative
and as Managing Beneficiary
By:__________________________________
Name:
Title:
6
EXHIBIT C
[FORM OF ISSUER'S REPORT]
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
This Report relates to the Due Period ending ___________ __, 20__ and the
related Payment Dates for the Notes.
A. Information Regarding the Master Trust portfolio
------------------------------------------------
1. Portfolio Yield for the Collateral Certificate .................... %
Yield Component ............................................... %
Credit Loss Component% ........................................ %
2. New Purchase Rate ................................................. %
3. Total Payment Rate ................................................ %
4. Principal Payment Rate ............................................ %
5. Aggregate Amount of Principal Receivables in the Master Trust:
Beginning of Due Period ....................................... $
Average ....................................................... $
Lump Sum Addition ............................................. $
End of Due Period ............................................. $
6. Delinquencies (Aggregate outstanding balances in the Accounts that
were delinquent by the time periods listed below as of the close of
business of the month preceding the Payment Dates, as a percentage
of aggregate Receivables as of the last day of the Due Period):
Current ....................................................... $
5-34 days delinquent .......................................... $
35-64 days delinquent ......................................... $
65-94 days delinquent ......................................... $
95-124 days delinquent ........................................ $
125-154 days delinquent ....................................... $
155-184 days delinquent ....................................... $
Current ....................................................... %
5-34 days delinquent .......................................... %
35-64 days delinquent ......................................... %
65-94 days delinquent ......................................... %
95-124 days delinquent ........................................ %
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
125-154 days delinquent........................................... %
155-184 days delinquent........................................... %
Current Due Current Due
Period on an Period on a
Actual Basis/1/ Standard Basis/1/
B. Information Regarding the Collateral Certificate
------------------------------------------------
(Percentage Basis)
1. Portfolio Yield % %
2. Weighted Average Note Rate % %
3. Weighted Average Investor Fee Rates
Fixed Servicing Fee % %
Others % %
4. Surplus Finance Charge Collections % %
5. Surplus Finance Charge Collections For Purposes % %
of Funding Class C Reserve Account
6. Required Surplus Finance Charge Amount % %
7. Aggregate Surplus Finance Charge Amount % %
minus Required Surplus Finance Charge Amount
/1/ Values for Current Due Period on an Actual Basis reflect, in the case of a
first due period close of a tranche of Notes, activity from the close date
until the first due period end, or, as in the case of Investor Monthly
Interest and certain fees, until the first Monthly Interest Date. Values
for Current Due Period on a Standard Basis reflect activity for the entire
current due period, as if all Notes had already been outstanding prior to
the first day of such due period.
All percents are based on actual cash revenue or expense for the period,
converted to an annualized percent using day counts appropriate for the
item, either 30/360, actual/360, or actual/actual. Depending on the item,
cash expenses may accrue from ____________, 20___ to ____________, 20___,
___ days, or ____________, 20___ to ____________, 20___, ___ days (standard
basis).
2
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
C. Information Regarding the Collateral Certificate
------------------------------------------------
(Dollar Basis)
1. Total Investor Collections $ $
Principal Collections $ $
Finance Charge Collections $ $
2. Investor Default Amount $ $
3. Investor Monthly Interest $ $
4. Investor Monthly Fees
Fixed Servicing Fees $ $
Others $ $
5. Surplus Finance Charge Collections $ $
6. Required Surplus Finance Charge Collections $ $
7. Aggregate Surplus Finance Charge Amount $ $
minus Required Surplus Finance Charge Amount
D. Information Regarding Notes of [Series]/2/
------------------------------------------
(Aggregate Basis)
1a. Class A Outstanding Dollar Principal Amount ................. $
1b. Class B Outstanding Dollar Principal Amount ................. $
1c. Class C Outstanding Dollar Principal Amount ................. $
2a. Targeted Deposit to Class A Interest Funding Account ........ $
2b. Targeted Deposit to Class B Interest Funding Account ........ $
2c. Targeted Deposit to Class C Interest Funding Account ........ $
3a. Balance in the Class A Interest Funding Account ............. $
3b. Balance in the Class B Interest Funding Account ............. $
3c. Balance in the Class C Interest Funding Account ............. $
4a. Targeted Deposit to Class A Principal Funding Account ....... $
4b. Targeted Deposit to Class B Principal Funding Account ....... $
4c. Targeted Deposit to Class C Principal Funding Account ....... $
5a. Balance in the Class A Principal Funding Account ............ $
5b. Balance in the Class B Principal Funding Account ............ $
------------------
/2/ The information reported is for the Due Period ending ___________ __, 20__,
and giving effect to all deposits, allocations, reallocations and payments
to be made in the month after the end of this Due Period.
3
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
5c. Balance in the Class C Principal Funding Account ............ $
6 Targeted Deposit to Class C Reserve Account.................. $
7 Balance in the Class C Reserve Account....................... $
8a. Maximum enhance amount available to Outstanding Class A
Notes from Class B Notes .................................... $
8b. As a Percentage of Class A Outstanding Dollar Principal
Amount ...................................................... %
8c. Maximum enhancement amount available to ..................... $
Outstanding Class A Notes from Class C Notes ................ $
8d. As a Percentage of Class A Outstanding Dollar Principal
Amount ...................................................... %
8e. Maximum enhancement amount available to ..................... $
Outstanding Class B Notes from Class C Notes ................ $
8f. As a Percentage of Class B Outstanding Dollar Principal
Amount ...................................................... %
9a. Reduction in the Class A Nominal Liquidation
Amount resulting from an allocation of Investor Charge-Offs . $
9b. Reduction in the Class B Nominal Liquidation
Amount resulting from an allocation of Investor Charge-Offs
or a reallocation of Principal Collections to pay interest on
Class A Notes ............................................... $
9c. Reduction in the Class C Nominal Liquidation
Amount resulting from an allocation of Investor Charge-Offs
or a reallocation of Principal Collections to pay interest on
Class A or Class B Notes .................................... $
10a. Reimbursement of Class A Nominal Liquidation Amount ......... $
10b. Reimbursement of Class B Nominal Liquidation Amount ......... $
10c. Reimbursement of Class C Nominal Liquidation Amount ......... $
E. Information Regarding Distributions to Noteholders of [Series]/3/
-----------------------------------------------------------------
(Aggregate Basis)
1a. The total amount of the distribution to Class A Noteholders
on the applicable Payment Dates .............................. $
---------------------
/3/ The information reported is for the Due Period ending ___________ __, 20__,
and giving effect to all deposits, allocations, reallocations and payments to be
made in the month after the end of this Due Period.
4
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
1b. The total amount of the distribution to Class B Noteholders
on the applicable Payment Dates .............................. $
1c. The total amount of the distribution to Class C Noteholders
on the applicable Payment Dates .............................. $
2a. The amount of the distribution set forth in item 1(a) above in
respect of principal on the Class A Notes .................... $
2b. The amount of the distribution set forth in item 1(b) above in
respect of principal on the Class B Notes .................... $
2c. The amount of the distribution set forth in item 1(c) above in
respect of principal on the Class C Notes .................... $
3a. The amount of the distribution set forth in item 1(a) above in
respect of interest on the Class A Notes ..................... $
3b. The amount of the distribution set forth in item 1(b) above in
respect of interest on the Class B Notes ..................... $
3c. The amount of the distribution set forth in item 1(c) above in
respect of interest on the Class C Notes ..................... $
4a. The amount, if any, by which the Adjusted Outstanding
Dollar Principal Amount of the Class A Notes exceeds the
Class A Nominal Liquidation Amount as of the Record Date
with respect to the applicable Payment Dates ................. $
4b. The amount, if any, by which the Adjusted Outstanding
Dollar Principal Amount of the Class B Notes exceeds the
Class B Nominal Liquidation Amount as of the Record Date
with respect to the applicable Payment Dates ................. $
4c. The amount, if any, by which the Adjusted Outstanding
Dollar Principal Amount of the Class C Notes exceeds the
Class C Nominal Liquidation Amount as of the Record Date
with respect to the applicable Payment Dates ................. $
5
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
F. Information Regarding Notes of [Series]/4/
------------------------------------------
(Individual Tranche Basis)
----------------------------------------------------------------------------------------------------------------------
Class/ Outstanding Monthly Targeted Actual Cumulative Interest Interest
Tranche Dollar Princip Accretion Interest Interest Shortfall in Funding Sub- Payment On
Amount Monthly Monthly Interest Funding Account Payment
Deposit Deposit Sub-Account Balance Date
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
2. Principal Payments and Deposits to Principal Funding Sub-Accounts
----------------------------------------------------------------------------------------------------------------------
Class/Tranche Targeted Actual Cumulative Principal Principal
Principal Monthly Principal Shortfall in Funding Payment
Deposit Monthly Deposit Principal Funding Sub-Account On Payment Date
Sub-Account Balance
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
/4/ The information reported is for the Due Period ending ___________ __, 20__,
and giving effect to all deposits, allocations, reallocations and payments to be
made in the month after the end of this Due Period.
6
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
3. Deposits to and Withdrawals from Class C Reserve Sub-Accounts
----------------------------------------------------------------------------------------------------------------------
Class/Tranche Targeted Deposit Actual Deposit Cumulative Withdrawals from Class C Reserve
to Class C to Shortfall in Class Class C Reserve Sub-Account
Reserve Sub-Account Class C Reserve C Reserve Sub-Account
Sub-Account Sub-Account Balance
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
4. Maximum Enhancement Amount Available to Class A Notes; Class A Usage of
Class B and Class C Subordinated Amounts
----------------------------------------------------------------------------------------------------------------------
Class/ Maximum Maximum Class A Usage Class A Usage Cumulative Cumulative
Tranche Enhancement Enhancement of of Class A Usage Class A Usage
Amount Amount Class B Class C of Class B of Class C
Available from Available from Subordinated Subordinated Subordinated Subordinated
Class B Notes Class C Notes Amount for this Amount for this Amount Amount
Due Period Due Period
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
5. Maximum Enhancement Amount Available to Class B Notes; Class B Usage of
Class C Subordinated Amount
----------------------------------------------------------------------------------------------------------------------
Class/Tranche Maximum Enhancement Class B Usage of Class Cumulative Class B Usage
Amount Available from Class C of
C Notes Subordinated Amount for Class C Subordinated
this Due Period Amount
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
7
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
6. Reductions of and Reimbursements to Nominal Liquidation Amount
-----------------------------------------------------------------------------------------------------------------------------------
Class/ Tranche Reduction Reduction Cumulative Reduction Cumulative Reduction Reimbursement of
Resulting from Resulting from a Resulting from an Resulting from a prior reductions
an Allocation of Reallocation of Allocation of Reallocation of of Nominal
Investor Principal Investor Principal Liquidation
Charge-offs for Collections to Charge-offs (net of Collections to pay Amount for this
this Due Period pay interest on Reimbursements) interest on senior Due Period
senior classes of classes of Notes
Notes for this (net of
Due Period Reimbursements)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
8
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
======================================================================
CITIBANK CREDIT CARD ISSUANCE TRUST /
CITIBANK CREDIT CARD MASTER TRUST I
For the Due Period Ending ___________ __, 20__
======================================================================
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Report
this __ day of __________ 20__.
[CITIBANK (SOUTH DAKOTA), N.A.,
As Managing Beneficiary of Citibank Credit
Card Issuance Trust and As Servicer of
Citibank Credit Card Master Trust I]
By:
---------------------------------------
Name:
Title:
9
EXHIBIT D
[FORM OF] INVESTMENT LETTER
, 20
Bankers Trust Company,
as Trustee,
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Citibank Credit Card Issuance Trust
c/o Citibank (South Dakota), N.A., as Managing Beneficiary
000 Xxxx 00xx Xxxxxx, Xxxxx
Mail Code 0000
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Attention: General Counsel
Citigroup Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Law Department
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Corporate Trust Department
Re: Purchase of $__________/1/ principal amount of Citibank Credit
Card Issuance Trust Series [ ] Class [ ] Notes.
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "Notes") we
confirm that:
(1) We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are being
sold to us in a transaction that is exempt from the registration
requirements of the Securities Act.
------------------------
/1/ Not less than $250,000 minimum principal amount.
(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 (iv) below) are able to bear the economic risk
of an investment in the Notes. We (and any account for which we are
purchasing under paragraph (iv) below) are an "accredited investor" (as
such term is defined in Rule 501(a)(1), (2) or (3) of Regulation D under
the Securities Act).
(4) We are acquiring the Notes for our own account or for accounts as
to which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that
the disposition of our property shall at all times be and remain within our
control;
(5) We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available;
(6) We agree that in the event that at some future time we wish to
dispose of or exchange any of the Notes (such disposition or exchange not
being currently foreseen or contemplated), we will not transfer or exchange
any of the Notes unless:
(a)(i) the sale is of at least U.S. $250,000 principal amount of Notes
to an Eligible Purchaser (as defined below), (ii) a letter to substantially
the same effect as paragraphs (1), (2), (3), (4), (5) and (6) of this
letter is executed promptly by the purchaser and (iii) all offers or
solicitations in connection with the sale, whether directly or through any
agent acting on our behalf, are limited only to Eligible Purchasers and are
not made by means of any form of general solicitation or general
advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than three years; or
(c) the Notes are sold in any other transaction that does not require
registration under the Securities Act and, if the Issuer, the 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:
2
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE
IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO
HEREIN."
This legend may be removed if the Issuer, the Trustee and the Note Registrar
have received an opinion of counsel satisfactory to them, in form and substance
satisfactory to them, to the effect that the legend may be removed.
"Eligible Purchaser" means either an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein. "Eligible Dealer" means any
corporation or other entity the principal business of which is acting as a
broker and/or dealer in securities. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Indenture dated as of
September 26, 2000, between Citibank Credit Card Issuance Trust and Bankers
Trust Company, as trustee, as amended, supplemented and otherwise modified.
Very truly yours,
-----------------------------------------------
(Name of Purchaser)
By
-----------------------------------------------
(Authorized officer)
3
EXHIBIT E-1
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE]
CITIBANK CREDIT CARD ISSUANCE TRUST,
Series [ ] Class [ ] Notes
[Insert title or sufficient description
of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of the
Series [ ] Class [ ] Notes to be exchanged for definitive Notes (the
"Submitted Portion") pursuant to this certificate (the "Notes") as provided in
the Indenture dated as of September 26, 2000 (as amended, supplemented and
otherwise modified, the "Indenture") in respect of such issue. This is to
certify that (i) we have received a certificate or certificates, in writing or
by tested telex, with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion and with
respect to such person's beneficial interest either (a) from such person,
substantially in the form of Exhibit E-2 to the Indenture, or (b) from
[ ], substantially in the form of Exhibit E-3 to the
Indenture, and (ii) the Submitted Portion includes no part of the Temporary
Global Note excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in such proceedings.
Dated: , 20 /1/ [Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System]
[Clearstream, Luxembourg]
By
--------------------------------------------------
---------------------
/1/ To be dated on the date of the proposed exchange.
EXHIBIT E-2
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY [ ] WITH RESPECT TO REGISTERED NOTES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS]
CITIBANK CREDIT CARD ISSUANCE TRUST,
Series [ ] Class [ ] Notes
In connection with the initial issuance and placement of the Series [ ]
Class [ ] Notes (the "Notes"), an institutional investor in the United States
(an "institutional investor") is purchasing [U.S.$/Pounds//Evro/SF ]
aggregate principal amount of the Notes held in our account at [Xxxxxx Guaranty
Trust Company of New York, Brussels office, as operator of the Euroclear System]
[Clearstream, Luxembourg] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with United
States laws. We irrevocably authorize you to produce this certificate or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered by this certificate.]
The Definitive Notes in respect of this certificate are to be issued in
registered form in the minimum denomination of [U.S.$/Pounds//Evro/SF ]
and such Definitive Notes (and, unless the Indenture or terms document relating
to the Notes otherwise provides, any Notes issued in exchange or substitution
for or on registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933. NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (EACH AS
DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF
SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET
FORTH IN THE INDENTURE REFERRED TO HEREIN. THIS NOTE CANNOT BE EXCHANGED
FOR A BEARER NOTE ."
Dated: , 20
[ ]
By
----------------------------------------
Authorized officer
EXHIBIT E-3
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER
OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER]
CITIBANK CREDIT CARD ISSUANCE TRUST,
Series [ ] Class [ ] Notes
This is to certify that as of the date hereof and except as provided in the
third paragraph hereof, the Series [ ] Class [ ] Notes held by you for our
account (the "Notes") (i) are owned by a person that is not 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.$/Pounds//Euro/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: , 20 /1/ By
----------------------------------
Name:
As, or as agent for, the beneficial
owner(s) of the interest in the
Notes to which this certificate
relates.
-----------------------
/1/ This certificate must be dated on the earlier of the date of the first
payment of interest in respect of the Notes and the date of the delivery of the
Notes in definitive form.
2
