EXHIBIT 4.1
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BANK ONE ISSUANCE TRUST
as Issuer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee
____________________
INDENTURE
dated as of May 1, 2002
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.......................................................................2
Section 1.02 Compliance Certificates and Opinions.............................................22
Section 1.03 Form of Documents Delivered to Indenture Trustee.................................23
Section 1.04 Acts of Noteholders..............................................................24
Section 1.05 Notices, etc., to Indenture Trustee and Issuer...................................26
Section 1.06 Notices to Noteholders; Waiver...................................................27
Section 1.07 Conflict with Trust Indenture Act................................................28
Section 1.08 Effect of Headings and Table of Contents.........................................28
Section 1.09 Successors and Assigns...........................................................28
Section 1.10 Separability.....................................................................28
Section 1.11 Benefits of Indenture............................................................28
Section 1.12 Governing Law....................................................................29
Section 1.13 Counterparts.....................................................................29
Section 1.14 Indenture Referred to in the Trust Agreement.....................................29
Section 1.15 Legal Holidays...................................................................29
ARTICLE II
NOTE FORMS
Section 2.01 Forms Generally..................................................................30
Section 2.02 Forms of Notes...................................................................30
Section 2.03 Form of Indenture Trustee's Certificate of Authentication........................30
Section 2.04 Notes Issuable in the Form of a Global Note......................................31
Section 2.05 Temporary Global Notes and Permanent Global Notes................................34
Section 2.06 Beneficial Ownership of Global Notes.............................................35
Section 2.07 Notices to Depository............................................................36
ARTICLE III
THE NOTES
Section 3.01 General Title; General Limitations; Issuable in Series;
Terms of a Series, Class or Tranche of Notes.....................................37
Section 3.02 Denominations....................................................................41
Section 3.03 Execution, Authentication and Delivery and Dating................................41
Section 3.04 Temporary Notes..................................................................42
Section 3.05 Registration, Transfer and Exchange..............................................43
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes......................................46
Section 3.07 Payment of Interest; Interest Rights Preserved; Withholding Taxes................47
Section 3.08 Persons Deemed Owners............................................................48
Section 3.09 Cancellation.....................................................................48
Section 3.10 New Issuances of Notes...........................................................48
Section 3.11 Specification of Required Subordinated Amount and other Terms with
Respect to each Series, Class or Tranche of Notes................................51
Section 3.12 Shared Excess Available Finance Charge Collection Groups and Other Groups........51
ARTICLE IV
BANK ACCOUNTS AND INVESTMENTS
Section 4.01 Collections......................................................................52
Section 4.02 Bank Accounts....................................................................52
Section 4.03 Investment of Funds in the Bank Accounts.........................................53
ARTICLE V
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES
HELD BY THE ISSUER OR FIRST USA
Section 5.01 Satisfaction and Discharge of Indenture..........................................55
Section 5.02 Application of Trust Money.......................................................55
Section 5.03 Cancellation of Notes Held by the Issuer or the Transferor.......................56
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.01 Events of Default................................................................57
Section 6.02 Acceleration of Maturity; Rescission and Annulment...............................58
Section 6.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee or the Collateral Agent on Behalf of the Indenture Trustee.....60
Section 6.04 Indenture Trustee or the Collateral Agent May File Proofs of Claim...............61
Section 6.05 Indenture Trustee and the Collateral Agent May Enforce Claims Without
Possession of Notes..............................................................62
Section 6.06 Application of Money Collected...................................................62
Section 6.07 Collateral Agent May Elect to Hold the Collateral Certificate....................63
Section 6.08 Sale of Collateral for Accelerated Notes.........................................63
Section 6.09 Noteholders Have the Right to Direct the Time, Method and Place of
Conducting Any Proceeding for Any Remedy Available to the
Indenture Trustee or the Collateral Agent........................................63
Section 6.10 Limitation on Suits..............................................................64
Section 6.11 Unconditional Right of Noteholders to Receive Principal and Interest;
Limited Recourse.................................................................65
Section 6.12 Restoration of Rights and Remedies...............................................65
Section 6.13 Rights and Remedies Cumulative...................................................65
Section 6.14 Delay or Omission Not Waiver.....................................................66
Section 6.15 Control by Noteholders...........................................................66
Section 6.16 Waiver of Past Defaults..........................................................66
Section 6.17 Undertaking for Costs............................................................67
Section 6.18 Waiver of Stay or Extension Laws.................................................67
ARTICLE VII
THE INDENTURE TRUSTEE
Section 7.01 Certain Duties and Responsibilities..............................................68
Section 7.02 Notice of Defaults...............................................................69
Section 7.03 Certain Rights of Indenture Trustee..............................................70
Section 7.04 Not Responsible for Recitals or Issuance of Notes................................71
Section 7.05 May Hold Notes...................................................................71
Section 7.06 Money Held in Trust..............................................................71
Section 7.07 Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity......................................................71
Section 7.08 Disqualification; Conflicting Interests..........................................72
Section 7.09 Corporate Indenture Trustee Required; Eligibility................................72
Section 7.10 Resignation and Removal; Appointment of Successor................................73
Section 7.11 Acceptance of Appointment by Successor...........................................75
Section 7.12 Merger, Conversion, Consolidation or Succession to Business......................76
Section 7.13 Preferential Collection of Claims Against Issuer.................................76
Section 7.14 Appointment of Authenticating Agent..............................................76
Section 7.15 Tax Returns......................................................................78
Section 7.16 Representations and Covenants of the Indenture Trustee...........................79
Section 7.17 Custody of Collateral Certificates and Collateral................................79
Section 7.18 Indenture Trustee's Application for Instructions from the Issuer.................79
ARTICLE VIII
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE
TRUSTEE, ISSUER AND BENEFICIARY
Section 8.01 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders...........80
Section 8.02 Preservation of Information; Communications to Noteholders.......................80
Section 8.03 Reports by Indenture Trustee.....................................................82
Section 8.04 Meetings of Noteholders; Amendments and Waivers..................................83
Section 8.05 Reports by Issuer to the Commission..............................................85
Section 8.06 Monthly Noteholders' Statement...................................................85
Section 8.07 Payment Instruction to Master Trust..............................................86
ARTICLE IX
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING
AND SERVICING AGREEMENT AND AMENDMENTS TO THE
TRUST AGREEMENT
Section 9.01 Supplemental Indentures and Amendments Without Consent of Noteholders............87
Section 9.02 Supplemental Indentures with Consent of Noteholders..............................89
Section 9.03 Execution of Amendments and Indenture Supplements................................91
Section 9.04 Effect of Amendments and Indenture Supplements...................................91
Section 9.05 Conformity with Trust Indenture Act..............................................91
Section 9.06 Reference in Notes to Indenture Supplements......................................92
Section 9.07 Amendments to the Pooling and Servicing Agreement................................92
Section 9.08 Amendments to the Trust Agreement................................................92
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 10.01 Payment of Principal and Interest................................................94
Section 10.02 Maintenance of Office or Agency..................................................94
Section 10.03 Money for Note Payments to be Held in Trust......................................94
Section 10.04 Statement as to Compliance.......................................................97
Section 10.05 Legal Existence..................................................................97
Section 10.06 Further Instruments and Acts.....................................................97
Section 10.07 Compliance with Laws.............................................................97
Section 10.08 Notice of Events of Default......................................................97
Section 10.09 Certain Negative Covenants.......................................................97
Section 10.10 No Other Business................................................................98
Section 10.11 Rule 144A Information............................................................98
Section 10.12 Performance of Obligations; Servicing of Receivables.............................98
Section 10.13 Issuer May Consolidate, Etc., Only on Certain Terms..............................99
Section 10.14 Successor Substituted...........................................................101
Section 10.15 Guarantees, Loans, Advances and Other Liabilities...............................101
Section 10.16 Capital Expenditures............................................................102
Section 10.17 Restricted Payments.............................................................102
Section 10.18 No Borrowing....................................................................102
ARTICLE XI
EARLY AMORTIZATION OF NOTES
Section 11.01 Applicability of Article........................................................103
Section 11.02 Optional Repurchase.............................................................104
Section 11.03 Notice..........................................................................105
ARTICLE XII
MISCELLANEOUS
Section 12.01 No Petition.....................................................................106
Section 12.02 Trust Obligations...............................................................106
Section 12.03 Limitations on Liability........................................................106
Section 12.04 Tax Treatment...................................................................107
Section 12.05 Actions Taken by the Issuer.....................................................107
Section 12.06 Alternate Payment Provisions....................................................107
Section 12.07 Termination of Issuer...........................................................107
Section 12.08 Final Distribution..............................................................107
Section 12.09 Termination Distributions.......................................................108
Section 12.10 Derivative Counterparty, Supplemental Credit Enhancement Provider and
Supplemental Liquidity Provider as Third-Party Beneficiary......................109
Section 12.11 Notices.........................................................................109
EXHIBITS
EXHIBIT A FORM OF INVESTMENT LETTER
EXHIBIT B-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
EXHIBIT B-2 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY [o] WITH RESPECT TO
REGISTERED NOTES SOLD TO QUALIFIED INSTITUTIONAL
BUYERS
EXHIBIT B-3 FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY A BENEFICIAL OWNER OF
NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE PROVISIONS*
Trust Indenture
Act Section Indenture Section
----------- -----------------
310(a)(1)........................................ 5.11
(a)(2)....................................... 5.11
(a)(3)....................................... 5.10
(a)(4)....................................... Not Applicable
(a)(5)....................................... 5.11
(b).......................................... 7.08, 7.10(d)(i)
(c).......................................... Not Applicable
311(a)........................................... 7.13
(b).......................................... 5.12
(c).......................................... Not Applicable
312(a)........................................... 8.03, 6.02(a)
(b).......................................... 6.02(b)
(c).......................................... 6.02(c)
313(a)........................................... 6.04
(b).......................................... 8.03(c)
(c).......................................... 8.03, 8.03(c)
(d).......................................... 6.04
314(a).......................................... 3.09, 7.03(a)
(b)......................................... 3.06
(c)(1)....................................... 2.11, 8.09(c), 12.01(a)
(c)(2)....................................... 2.11, 8.09(c), 12.01(a)
(c)(3)....................................... 2.11, 8.09(c), 12.01(a)
(d)(1)....................................... 2.11, 8.09(c), 12.01(b)
(d)(2)....................................... Not Applicable
(d)(3)....................................... Not Applicable
(e).......................................... 11.01(a)
315(a)........................................... 5.01(b)
(b).......................................... 5.02
(c).......................................... 5.01(c)
(d).......................................... 5.01(d)
(d)(1)....................................... 5.01(d)
(d)(2)....................................... 5.01(d)
(d)(3)....................................... 5.01(d)
(e).......................................... 5.14
316(a)(1)(A)...................................... 5.12
316(a)(1)(B)...................................... 5.13
316(a)(2)......................................... Not Applicable
316(b)............................................ 5.08
317(a)(1)......................................... 5.04
317(a)(2)......................................... 5.04(d)
317(b)............................................ 5.04(a)
318(a)............................................ 11.07
__________________
* This reconciliation and tie shall not, for any purpose be part of
the within indenture.
This INDENTURE between BANK ONE ISSUANCE TRUST, a statutory
business trust organized under the laws of the State of Delaware (the
"Issuer"), having its principal office at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, and XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, a national banking association, in its capacity as Indenture
Trustee (the "Indenture Trustee"), is made and entered into as of May 1, 2002.
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
Pursuant to an Asset Pool Supplement, the Issuer shall grant to
the Collateral Agent (the "Secured Party") for the related Asset Pool for the
benefit and security of (a) the Noteholders secured by such Asset Pool, (b)
the Indenture Trustee, in its individual capacity and (c) the Collateral
Agent, in its individual capacity, a security interest in all of its right,
title and interest, whether now owned or hereafter acquired, in and to, the
Collateral specified in the related Asset Pool Supplement.
The security interest in the Collateral designated for inclusion
in an Asset Pool is granted to secure the Notes issued with respect to that
Asset Pool (and the obligations under this Indenture, the related Asset Pool
Supplement and the related Indenture Supplement) equally and ratably without
prejudice, priority or distinction between any Note and any other Note that is
expressly secured by such Asset Pool by reason of difference in time of
issuance or otherwise, except as otherwise expressly provided in this
Indenture, or in the Indenture Supplement which establishes any Series, Class
or Tranche of Notes, and to secure (i) the payment of all amounts due on such
Notes in accordance with their terms, (ii) the payment of all other sums
payable by the Issuer under this Indenture or any Indenture Supplement
relating to such secured Notes and (iii) compliance by the Issuer with the
provisions of this Indenture or any Indenture Supplement or any Asset Pool
Supplement relating to such Notes. This Indenture, as may be supplemented,
including by each Asset Pool Supplement, is a security agreement within the
meaning of the UCC.
The Indenture Trustee acknowledges the grant of such Security
Interest, and agrees to perform the duties herein such that the interests of
the Noteholders secured by such Asset Pool may be adequately and effectively
protected.
Particular Notes, Derivative Agreements, Supplemental Credit
Enhancement Agreements and Supplemental Liquidity Agreements will benefit from
the Security Interest to the extent (and only to the extent) proceeds of and
distributions on the Collateral are allocated for their benefit pursuant to
this Indenture, the applicable Asset Pool Supplement and the applicable
Indenture Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are to be authenticated, issued and delivered,
and in consideration of the premises and the purchase of Notes by the Holders
thereof, it is mutually covenanted and agreed as follows, for the equal and
proportionate benefit of all Holders of the Notes of a Series, Class or
Tranche thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal,
interest and other amounts on the Notes and to make payments in respect of
Derivative Agreements, Supplemental Credit Enhancement Agreements or
Supplemental Liquidity Agreements, as applicable, is limited in recourse as
set forth in Section 6.11.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions. For all purposes of this Indenture and
of any Indenture Supplement, except as otherwise expressly provided or unless
the context otherwise requires:
(1) the terms defined in this Article I have the meanings assigned
to them in this Article I, 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 Transfer and Servicing Agreement or Asset Pool 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."
"Account" has the meaning specified in the Transfer and Servicing
Agreement.
"Act," when used with respect to any Noteholder, is defined in
Section 1.04(a).
"Action," when used with respect to any Noteholder, is defined in
Section 1.04(a).
"Adjusted Outstanding Dollar Principal Amount" means at any time
during a Monthly Period with respect to any Series, Class or Tranche of Notes,
the Outstanding Dollar Principal Amount of all Outstanding Notes of such
Series, Class or Tranche of Notes at such time, less any funds on deposit in
the Principal Funding Account or the related Sub- Account, as applicable, for
the benefit of such Series, Class or Tranche of Notes at such time.
"Adverse Effect" means, whenever used in this Indenture with
respect to any Series, Class or Tranche of Notes with respect to any Action,
that such Action will at the time of its occurrence (a) result in the
occurrence of an Early Amortization Event or Event of Default relating to such
Series, Class or Tranche of Notes, as applicable, (b) have a material adverse
effect on the amount of funds available to be distributed to the Noteholders
of any such Series, Class or Tranche of Notes pursuant to this Indenture or on
the timing of such distributions, or (c) adversely affect the security
interest of the applicable Collateral Agent in the Collateral securing the
Outstanding Notes in the related Asset Pool unless otherwise permitted by this
Indenture or any related Asset Pool Supplement.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Asset Pool" means a pool of Collateral designated for inclusion
in a particular Asset Pool pursuant to an Asset Pool Supplement, that secures
a particular Series, Class or Tranche of Notes or more than one Series, Class
or Tranche of Notes as specified in the applicable Indenture Supplements for
each such Series, Class or Tranche of Notes.
"Asset Pool Supplement" means, with respect to any Asset Pool, a
supplement to this Indenture, executed and delivered in conjunction with the
first issuance of Notes secured by that Asset Pool, including all amendments
thereof and supplements thereto.
"Authenticating Agent" means any Person authorized by the
Indenture Trustee to authenticate Notes under Section 7.14.
"Authorized Newspaper" means, with respect to any Series, Class or
Tranche of Notes, publication in the newspaper of record specified in the
applicable Indenture Supplement for that Series, Class or Tranche of Notes, or
if and so long as Notes of such Series, Class or Tranche are listed on any
securities exchange and that exchange so requires, in the newspaper of record
required by the applicable securities exchange, printed in any language
specified in the applicable Indenture Supplement or satisfying the
requirements of such exchange.
"Available Finance Charge Collections" means, for any Monthly
Period, (a) with respect to the Noteholders, the Finance Charge Collections
paid to the Issuer and allocated to the Noteholders, and (b) with respect to
any Series, Class or Tranche of Notes, the amount of collections in clause (a)
allocated to such Series, Class or Tranche of Notes, as applicable, plus
investment earnings allocable to the amounts on deposit in the Collection
Account and Excess Funding Account allocable to such Series, Class or Tranche
of Notes, plus any other amounts, or allocable portion thereof, to be treated
as Available Finance Charge Collections with respect to such Series, Class or
Tranche of Notes, subject to the applicable Indenture Supplement.
"Available Principal Collections" means, for any Monthly Period,
(a) with respect to the Noteholders, the Principal Collections paid to the
Issuer and allocated to the Noteholders, and (b) with respect to any Series,
Class or Tranche of Notes, (i) the amount of collections in clause (a)
allocated to such Series, Class or Tranche of Notes, as applicable, plus (ii)
any other amounts, or allocable portion thereof, to be treated as Available
Principal Collections with respect to such Series, Class or Tranche of Notes,
subject to the applicable Indenture Supplement.
"Bank Accounts" has the meaning specified in the related Asset
Pool Supplement.
"Bearer Note" means a Note in bearer form.
"Beneficiary" has the meaning specified in the Trust Agreement.
"Business Day," means, unless otherwise specified in the Indenture
Supplement for any Series, Class or Tranche of Notes, any day other than (a) a
Saturday or Sunday or (b) any other day on which national banking associations
or state banking institutions in New York, New York, Minneapolis, Minnesota or
Newark, Delaware (or, with respect to any Series, Class or Tranche, any
additional city specified in the related Indenture Supplement), are authorized
or obligated by law, executive order or governmental decree to be closed.
"Certificate of Authentication" means the certificate of
authentication of the Indenture Trustee, the form of which is described in
Section 2.03, or the alternate certificate of authentication of the
Authenticating Agent, the form of which is described in Section 7.14.
"Class" means, with respect to any Note, the class specified in
the applicable Indenture Supplement.
"Class C Reserve Account" means, for any Notes, the Bank Account
and any Sub-Account thereof established and maintained as described in the
related Indenture Supplement.
"Collateral" has, with respect to each Asset Pool, the meaning
specified in the Granting Clause for such Asset Pool in the applicable Asset
Pool Supplement.
"Collateral Agent" has, with respect to each Asset Pool, the
meaning specified in the applicable Asset Pool Supplement.
"Collateral Agent Authorized Officer" has, with respect to each
Asset Pool, the meaning specified in the applicable Asset Pool Supplement.
"Collateral Certificate" means an Investor Certificate issued
pursuant to a Pooling and Servicing Agreement and the related Series
Supplement.
"Collection Account" has, with respect to each Asset Pool, the
meaning specified in the Asset Pool Supplement for such Asset Pool.
"Collections" has the meaning specified in the Transfer and
Servicing Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act, or, if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such date.
"Corporate Trust Office" means the principal office of the
Indenture Trustee in Minneapolis, Minnesota at which at any particular time
its corporate trust business will be principally administered, which office at
the date hereof is located at MAC X0000-000, Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000.
"Default Amount" has the meaning specified in the Transfer 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 Indenture Trustee.
"Discount Note" means a Note that provides for an amount less than
the Stated Principal Amount (but not less than the Initial Dollar Principal
Amount) thereof to be due and payable upon the occurrence of an Early
Amortization Event or mandatory redemption or the occurrence of an Event of
Default and the acceleration of such Note, in each case before the Scheduled
Principal Payment Date of the applicable Note.
"Dollar" has the meaning specified in the Transfer and Servicing
Agreement.
"Early Amortization Event" has the meaning specified in Section
11.01.
"Effective Date" means the date on which this Indenture is
executed and delivered by the parties hereto.
"Entity" means any Person other than an individual or government
(including any agency or political subdivision thereof).
"ERISA" has the meaning specified in the Transfer and Servicing
Agreement.
"Event of Default" has the meaning specified in Section 6.01.
"Excess Funding Account" has, with respect to each Asset Pool, the
meaning specified in the applicable Asset Pool Supplement.
"Excess Funding Amount" has, with respect to any Asset Pool, the
meaning specified in the Asset Pool Supplement for such Asset Pool.
"Exchange Date" means, with respect to any Tranche of Notes, the
latest of:
(a) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in registered
form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in bearer
form, the date of presentation of certification of non-United States
beneficial ownership (as described in Section 2.05); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a Permanent
Global Note is permitted by applicable law.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Federal Bankruptcy Code" means Title 11 of the United States
Code, as amended from time to time.
"Finance Charge Collections" has the meaning specified in the
Transfer and Servicing Agreement.
"First Note Transfer Date" has the meaning specified in the
applicable Asset Pool Supplement.
"First USA" means First USA Bank, National Association, a national
banking association, and its successors and permitted assigns.
"Fitch" has the meaning specified in the Transfer and Servicing
Agreement.
"Foreign Currency" means (a) a currency other than Dollars, or (b)
denominated in a currency other than Dollars.
"Foreign Currency Note" means a Note denominated in a Foreign
Currency.
"Foreign Depository" means the Person specified in the applicable
Indenture Supplement, in its capacity as depository for the accounts of any
clearing agencies located outside the United States.
"GAAP" means generally accepted accounting principles in the
United States of America in effect from time to time.
"Global Note" means any Note issued pursuant to Section 2.04.
"Group" means any one or more Series of Notes which are specified
as belonging to a common Group (including any Shared Excess Available Finance
Charge Collections Group or any group established by an Indenture Supplement)
in the applicable Indenture Supplement. A particular Series may be included in
more than one Group if the Indenture Supplement for such Series so provides.
"Holder," when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally
executed and as amended, supplemented, restated or otherwise modified from
time to time by one or more indentures supplemental hereto, including
Indenture Supplements for the issuance of Series of Notes and Asset Pool
Supplements for the establishment of Asset Pools entered into pursuant to the
applicable provisions hereof.
"Indenture Supplement" means, with respect to any Series of Notes,
a supplement to this Indenture, executed and delivered in conjunction with the
issuance of such Series of Notes pursuant to Section 3.01, together with any
applicable Terms Document for any Classes and Tranches of Notes belonging to
such Series related to such Indenture Supplement and any amendment to the
Indenture Supplement executed pursuant to Section 9.01 or 9.02, and, in either
case, including all amendments thereof and supplements thereto.
"Indenture Trustee" means the Person named as the Indenture
Trustee in the first paragraph of this Indenture until a successor Indenture
Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Indenture Trustee" means and includes each Person
who is then an Indenture Trustee hereunder. If at any time there is more than
one such Person, "Indenture Trustee" as used with respect to the Notes of any
Series, Class or Tranche means the Indenture Trustee with respect to Notes of
that Series, Class or Tranche.
"Indenture Trustee Authorized Officer" means, when used with
respect to the Indenture Trustee, any vice president, any assistant vice
president, the treasurer, any assistant treasurer, any senior trust officer or
trust officer, or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Initial Dollar Principal Amount" means (a) unless otherwise
specified in the applicable Indenture Supplement, with respect to a Series,
Class or Tranche of Dollar Interest-bearing Notes, the aggregate initial
principal amount of the Outstanding Notes of such Series, Class or Tranche
plus the aggregate initial principal amount of any additional Notes of such
Series, Class or Tranche, and (b) with respect to a Series, Class or Tranche
of Discount Notes or Foreign Currency Notes, the amount specified in the
applicable Indenture Supplement as the Initial Dollar Principal Amount
thereof.
"Interest-bearing Note" means a Note that bears interest at a
stated or computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Funding Account" means, with respect to any Notes,
the Bank Account and any Sub-Account thereof established and maintained as
described in the related Indenture Supplement.
"Interest Payment Date" means, with respect to any Series, Class
or Tranche of Notes, the scheduled due date of any payment of interest on such
Notes, as specified in the applicable Indenture Supplement, or if such day is
not a Business Day, the next following Business Day, unless such day is in the
next calendar month, in which case the Interest Payment Date, unless otherwise
specified in the related Indenture Supplement, will be the last Business Day
of the current calendar month; provided, however, that upon the acceleration
of a Series, Class or Tranche of Notes following an Event of Default or upon
the occurrence of an Early Amortization Event, or other optional or mandatory
redemption of that Series, Class or Tranche of Notes, each Monthly Principal
Accrual Date will be an Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time.
"Invested Amount" has, with respect to any Collateral Certificate,
the meaning specified in the Series Supplement for the applicable Collateral
Certificate and with respect to any other Investor Certificate, the meaning
specified in the applicable Pooling and Servicing Agreement and the related
Series Supplement.
"Investor Certificate" means an investor certificate, and not a
seller certificate or transferor certificate, issued pursuant to a Pooling and
Servicing Agreement and related Series Supplement.
"Investor Certificateholder" means the holder of record of an
Investor Certificate.
"Investment Company Act" means the Investment Company Act of 1940,
as amended.
"Issuer" has the meaning specified in the first paragraph of this
Indenture.
"Issuer Authorized Officer" means (a) an authorized signatory of
the Owner Trustee, or (b) the chairman or vice-chairman of the board of
directors, chairman or vice-chairman of the executive committee of the board
of directors, the president, any vice-president, the secretary, any assistant
secretary, the treasurer, or any assistant treasurer, in each case of the
Beneficiary, or any other officer or employee of the Beneficiary who is
authorized to act on behalf of the Issuer.
"Issuer Certificate" means a certificate (including an Officer's
Certificate) signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer and, in each case delivered to the Indenture
Trustee relating to, among other things, the issuance of a new Series, Class
or Tranche of Notes. Wherever this Indenture requires that an Issuer
Certificate be signed also by an accountant or other expert, such accountant
or other expert (except as otherwise expressly provided in this Indenture) may
be an employee of the Beneficiary.
"Issuer Tax Opinion" means, with respect to any Action, an Opinion
of Counsel to the effect that, for United States federal income tax purposes,
(a) such Action will not cause any Outstanding Series, Class or Tranche of
Notes that were characterized as debt at the time of their issuance to be
characterized as other than debt, (b) such Action will not cause the Issuer to
be treated as an association (or publicly traded partnership) taxable as a
corporation and (c) such Action will not cause or constitute an event in which
gain or loss would be recognized by any Holder of any such Notes.
"Legal Maturity Date" means, with respect to a Series, Class or
Tranche of Notes, the date specified in the Indenture Supplement, for such
Notes as the fixed date on which the principal of such Series, Class or
Tranche of Notes is due and payable.
"Majority Holders" means, with respect to any Series, Class or
Tranche of Notes or all Outstanding Notes, the Holders of greater than 50% in
Outstanding Dollar Principal Amount of the Outstanding Notes of that Series,
Class or Tranche or of all Outstanding Notes, as the case may be.
"Master Trust" means a master trust or other securitization
special purpose entity for which First USA or an Affiliate of First USA acts
as transferor or seller or servicer, established pursuant to a Pooling and
Servicing Agreement.
"Master Trust Tax Opinion" means, with respect to any Action, an
Opinion of Counsel to the effect that, for United States federal income tax
purposes, (a) such Action will not cause any Investor Certificates that were
characterized as debt at the time of their issuance to be characterized as
other than debt and (b) such Action will not cause any Master Trust to be
treated as an association (or publicly traded partnership) taxable as a
corporation.
"Master Trust Trustee" has the meaning specified in the Transfer
and Servicing Agreement.
"Monthly Servicer's Certificate" has the meaning specified in the
Transfer and Servicing Agreement.
"Monthly Noteholders' Statement" means, with respect to any Series
of Notes, a report, the form of which is attached as an exhibit to the related
Indenture Supplement.
"Monthly Period" means the period from and including the first day
of a calendar month to and including the last day of a calendar month.
"Monthly Principal Accrual Date" has, with respect to any Class or
Tranche of Notes, the meaning specified in the Indenture Supplement.
"Moody's" has the meaning specified in the Transfer and Servicing
Agreement.
"Nominal Liquidation Amount" means, with respect to any
Outstanding Series, Class or Tranche of Notes, an amount determined in
accordance with the applicable Indenture Supplement. The Nominal Liquidation
Amount for a Series of Notes will be the sum of the Nominal Liquidation
Amounts of all of the Classes or Tranches of Notes of such Series.
"Note" or "Notes" means any note or notes of any Series, Class or
Tranche authenticated and delivered from time to time under this Indenture.
"Note Owner" means the beneficial owner of an interest in a Global
Note.
"Note Rating Agency" means, with respect to any Outstanding
Series, Class or Tranche of Notes, each statistical note rating agency
selected by the Issuer to rate such Notes.
"Note Register" is defined in Section 3.05.
"Note Registrar" means the Person who keeps the Note Register
specified in Section 3.05.
"Note Transfer Date" has the meaning specified in the applicable
Asset Pool Supplement.
"Noteholder" means a Person in whose name a Note is registered in
the Note Register or the bearer of any Bearer Note (including a
Global Note in bearer form), as the case may be.
"Officer's Certificate" means a certificate signed by the
Beneficiary or the Owner Trustee and delivered to the Indenture Trustee.
Wherever this Indenture requires that an Officer's Certificate be signed also
by an accountant or other expert, such accountant or other expert (except as
otherwise expressly provided in this Indenture) may be an employee of the
Beneficiary.
"Opinion of Counsel" means a written opinion of counsel acceptable
to the Indenture Trustee, who may, without limitation, and except as otherwise
expressly provided in this Indenture, be an employee of or of counsel to the
Issuer, the Beneficiary or any of their Affiliates.
"Outstanding," means, with respect to all Notes, all Notes in all
Asset Pools and, with respect to a Note or with respect to Notes of any
Series, Class or Tranche, as of the date of determination, all such Notes
theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation pursuant to Section 3.09,
or canceled by the Issuer, First USA or any Affiliate thereof and delivered to
the Indenture Trustee pursuant to Section 3.09;
(b) any Notes for whose full payment (including principal and
interest) or redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given if required pursuant to this Indenture
and the related Indenture Supplement, or provision therefor satisfactory to
the Indenture Trustee has been made;
(c) any Notes which are canceled pursuant to Section 5.03; and
(d) any Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, or which will
have been paid pursuant to the terms of Section 3.06 (except with respect to
any such Note as to which proof satisfactory to the Indenture Trustee is
presented that such Note is held by a person in whose hands such Note is a
legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations,
reallocations or payments to be made, unless the context clearly requires
otherwise, references to "Notes" will be deemed to be references to
"Outstanding Notes." In determining whether the Holders of the requisite
principal amount of such Outstanding Notes have taken any Action hereunder,
and for purposes of Section 8.04, Notes beneficially owned by the Issuer or
First USA or any Affiliate of the Issuer or First USA will be disregarded and
deemed not to be Outstanding. In determining whether the Indenture Trustee
will be protected in relying upon any such Action, only Notes which an
Indenture Trustee Authorized Officer knows to be owned by the Issuer or First
USA or any Affiliate of the Issuer or First USA 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 Indenture Trustee the
pledgee's right to act as owner with respect to such Notes and that the
pledgee is not the Issuer, First USA or any other obligor upon the Notes or
any Affiliate of the Issuer, First USA or such other obligor.
"Outstanding Dollar Principal Amount" means at any time:
(a) with respect to any Series, Class or Tranche of non-Discount
Notes, the aggregate Initial Dollar Principal Amount of the Outstanding Notes
of such Series, Class or Tranche at such time, less the amount of any
withdrawals from the Principal Funding Account or Sub-Account, as applicable,
for such Series, Class or Tranche of Notes for payment of principal to the
Holders of such Series, Class or Tranche of Notes or the applicable Derivative
Counterparty, pursuant to the related Indenture Supplement, and
(b) with respect to any Series, Class or Tranche of Discount
Notes, an amount of the Outstanding Notes of such Series, Class or Tranche
calculated by reference to the applicable formula specified in the applicable
Indenture Supplement, taking into account the amount and timing of payments of
principal made to the Holders of such Series, Class or Tranche or to the
applicable Derivative Counterparty and accretions of principal, each pursuant
to the related Indenture Supplement.
"Owner Trustee" has the meaning specified in the Transfer and
Servicing Agreement.
"Paying Agent" means any Person authorized by the Issuer to pay
the principal of or interest on any Notes on behalf of the Issuer, as provided
in Section 10.02 hereof.
"Payment Date" means, with respect to any Series, Class or Tranche
of Notes, the applicable Principal Payment Date or Interest Payment Date.
"Payment Instruction" means, with respect to any Series of Notes,
an instruction, the form of which is attached as an exhibit to the related
Indenture Supplement.
"Performing" means, with respect to any Derivative Agreement, no
payment default or repudiation of performance by a Derivative Counterparty has
occurred, and such Derivative Agreement has not been terminated.
"Permanent Global Note" is defined in Section 2.05.
"Permitted Investments" means, unless otherwise provided in the
Indenture Supplement with respect to any Series, Class or Tranche of Notes:
(a) instruments, investment property or other property consisting
of:
(i) obligations of or fully guaranteed by the United States
of America;
(ii) time deposits, promissory notes or certificates of
deposit of any depository institution or trust company incorporated
under the laws of the United States of America or any state thereof
(or domestic branches of foreign depository institutions or trust
companies) and subject to supervision and examination by federal or
state banking or depository institution authorities; provided,
however, that at the time of the Indenture Trustee's investment or
contractual commitment to invest therein, the certificates of deposit
or short-term deposits of such depository institution or trust
company shall have a credit rating from Moody's and Standard & Poor's
of "P-1" and "A-1+," respectively, and, if rated by Fitch, "F1+" from
Fitch;
(iii) commercial paper (including but not limited to asset
backed commercial paper) having, at the time of the Indenture
Trustee's investment or contractual commitment to invest therein, a
rating from Moody's and Standard & Poor's of "P-1" and "A-1+"
respectively, and, if rated by Fitch, "F1+" from Fitch;
(iv) bankers' acceptances issued by any depository
institution or trust company described in clause (a)(ii) above; and
(v) investments in money market funds rated "AAA-m" or
"AAA-mg" by Standard & Poor's and "Aaa" by Moody's and, if rated by
Fitch "AAA-V1+" from Fitch, or otherwise approved in writing by each
Note Rating Agency;
(b) demand deposits in the name of the Indenture Trustee in any
depository institution or trust company referred to in clause (a)(ii) above;
(c) uncertificated securities that are registered in the name of
the Indenture Trustee upon books maintained for that purpose by the issuer
thereof and identified on books maintained for that purpose by the Indenture
Trustee as held for the benefit of the Noteholders, and consisting of shares
of an open end diversified investment company which is registered under the
Investment Company Act, and which (i) invests its assets exclusively in
obligations of or guaranteed by the United States of America or any
instrumentality or agency thereof having in each instance a final maturity
date of less than one year from their date of purchase or other Permitted
Investments, (ii) seeks to maintain a constant net asset value per share,
(iii) has aggregate net assets of not less than $100,000,000 on the date of
purchase of such shares and (iv) with respect to which each Note Rating Agency
confirms in writing that such investment will not cause a Ratings Effect; and
(d) any other investment if each Note Rating Agency confirms in
writing that such investment will not cause a Ratings Effect.
"Person" means any individual, corporation, estate, partnership,
limited liability company, limited liability partnership, joint venture,
association, joint-stock company, business trust, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to any Series, Class or
Tranche of Notes issued hereunder, the city or political subdivision so
designated with respect to such Series, Class or Tranche of Notes in
accordance with the provisions of Section 3.01.
"Pooling and Servicing Agreement" means a pooling and servicing
agreement, indenture or other agreement for the issuance of securities from
time to time from a Master Trust and the servicing of the receivables in such
Master Trust, as such agreement may be amended, restated and supplemented from
time to time.
"Predecessor Notes" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in lieu of a mutilated, lost,
destroyed or stolen Note will be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Collections" has the meaning specified in the Transfer
and Servicing Agreement.
"Principal Funding Account" means, for any Notes, the Bank Account
and any Sub-Account thereof established and maintained as described in the
related Indenture Supplement.
"Principal Payment Date" means, with respect to any Series, Class
or Tranche of Notes, each Scheduled Principal Payment Date, or upon the
acceleration of such Series, Class or Tranche of Notes following an Event of
Default or upon the occurrence of an Early Amortization Event, or other
optional or mandatory redemption of such Series, Class or Tranche of Notes,
each Monthly Principal Accrual Date.
"Principal Receivables" has the meaning specified in the Transfer
and Servicing Agreement.
"Qualified Bank Account" means either (a) a segregated account
(including a securities account) with a Qualified Institution or (b) a
segregated trust account with the corporate trust department of a depository
institution organized under the laws of the United States of America or any
one of the states thereof or the District of Columbia (or any domestic branch
of a foreign bank having corporate trust powers and acting as Trustee for
funds deposited in such account), so long as any of the securities of such
depository institution shall have a credit rating from each applicable Note
Rating Agency in one of its generic rating categories which signifies
investment grade.
"Qualified Institution" means a depository institution organized
under the laws of the United States of America or any one of the states
thereof, including the District of Columbia (or any domestic branch of a
foreign bank), which at all times has (a)(i) a long- term unsecured debt
rating of A2 or better by Moody's and (ii) a certificate of deposit rating of
P-1 by Moody's and (b)(i) in the case of the Collection Account, if such
depository institution is an Affiliate of First USA, a certificate of deposit
rating of A-1 or better by Standard & Poor's or (ii) for any other depository
institution (or for any Affiliate of First USA in the case of any Account
other than the Collection Account), either (x) a long-term unsecured debt
rating of AAA by Standard & Poor's or (y) a certificate of deposit rating of
A-1+ by Standard & Poor's. If so qualified, the Indenture Trustee, the Owner
Trustee, First USA or an Affiliate of any of the foregoing may be considered a
Qualified Institution for the purposes of this definition.
"Ratings Effect" means a reduction, qualification with negative
implications or withdrawal of any then current rating of the Notes.
"Receivables" has the meaning specified in the Transfer and
Servicing Agreement.
"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
Interest Payment Date or Principal Payment Date, as applicable, unless
otherwise specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Removed Accounts" has the meaning specified in the Transfer and
Servicing Agreement.
"Required Subordinated Amount" means, with respect to any Tranche
of a Senior Class of Notes, the amount specified in the related Indenture
Supplement.
"Scheduled Principal Payment Date" means, with respect to any
Series, Class or Tranche of Notes, the scheduled due date of any payment of
principal on such Notes, as specified in the related Indenture Supplement, or
if such day is not a Business Day, the next following Business Day, unless
such day is in the next calendar month, in which case such Scheduled Principal
Payment Date, unless otherwise specified in the related Indenture Supplement,
will be the last Business Day of the current calendar month.
"Secured Party" 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.
"Senior Class," has, with respect to a Class of Notes of any
Series, the meaning specified in the related Indenture Supplement.
"Series" means, with respect to any Note, the series specified in
the applicable Indenture Supplement.
"Series Available Finance Charge Collections Shortfalls," has,
with respect to any Shared Excess Available Finance Charge Collections Series,
the meaning specified in the related Indenture Supplement.
"Series Supplement" means a series supplement to a Pooling and
Servicing Agreement or similar document setting forth the terms of a
Collateral Certificate, as such agreement may be amended, supplemented,
restated or otherwise modified from time to time.
"Servicer" has the meaning specified in the Transfer and Servicing
Agreement.
"Shared Excess Available Finance Charge Collections Series" means
a Series that, pursuant to the Indenture Supplement therefor, will share
certain Finance Charge Collections allocated to such Series with other Series
in the same Shared Excess Available Finance Charge Collections Group, as more
specifically specified in such Indenture Supplement.
"Shared Excess Available Finance Charge Collections Group" means a
Group of Series which have all been designated to share certain excess Finance
Charge Collections allocated to such Series with one another.
"Standard & Poor's" has the meaning specified in the Transfer and
Servicing Agreement.
"Stated Principal Amount," has, with respect to any Note, the
meaning specified in the related Indenture Supplement or Terms Document.
"Sub-Account" means each portion of a Bank Account designated as
such pursuant to this Indenture, the related Indenture Supplement or the
applicable Asset Pool Supplement.
"Subordinated Class," has, with respect to a Class of Notes of any
Series, the meaning specified in the related Indenture Supplement.
"Subordinated Notes" means Notes of a Subordinated Class of a
Series.
"Supplemental Bank Account" means the trust account or accounts
designated as such and established pursuant to subsection 4.02(a).
"Supplemental Credit Enhancement Agreement" means a letter of
credit, cash collateral account or surety bond or other similar arrangement
with various credit enhancement providers which provides the benefit of one or
more additional forms of credit enhancement which is referenced in the
applicable Indenture Supplement for any Series, Class or Tranche of Notes in
an Asset Pool.
"Supplemental Credit Enhancement Provider" means any party to any
Supplemental Credit Enhancement Agreement other than the Issuer or the
Indenture Trustee.
"Supplemental Liquidity Agreement" means a liquidity facility or
other similar arrangements with various liquidity providers which provides the
benefit of additional liquidity for any Series, Class or Tranche of Notes
secured by an Asset Pool which is referenced in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Supplemental Liquidity Provider" means any party to any
Supplemental Liquidity Agreement other than the Issuer or the Indenture
Trustee.
"Temporary Global Note" is defined in Section 2.05.
"Terms Document" means, with respect to any Class or Tranche of
Notes, a supplement to the Indenture Supplement that establishes such Class or
Tranche.
"Tranche" means, with respect to any Class of Notes, Notes of such
Class which have identical terms, conditions and designation. Notes of a
single Tranche may be issued on different dates.
"Transfer and Servicing Agreement" means the Transfer and
Servicing Agreement, dated as of May 1, 2002, among First USA, as Transferor,
Servicer and Administrator, the Issuer, and Xxxxx Fargo Bank Minnesota,
National Association, as Indenture Trustee and Collateral Agent, as amended,
supplemented or restated from time to time.
"Transfer Agent" means Xxxxx Fargo Bank Minnesota, National
Association.
"Transferor" has the meaning specified in the Transfer and
Servicing Agreement.
"Transferor Certificate" has the meaning specified in the related
Asset Pool Supplement.
"Transferor Interest" has the meaning specified in the Transfer
and Servicing Agreement.
"Trust Agreement" has the meaning specified in the Transfer and
Servicing Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this Indenture was executed except as provided in Section 9.05.
"Trust Servicing Fee" has the meaning specified in the Transfer
and Servicing Agreement.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction.
"United States Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States, or any political subdivision thereof, or
an estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
"U.S. Depository" means, unless otherwise specified by the Issuer
pursuant to Section 2.04, 2.06, or 3.01, with respect to Notes of any Tranche
issuable or issued as a Global Note within the United States, The Depository
Trust Company, New York, New York, or any successor thereto registered as a
clearing agency under the Securities Exchange Act, or other applicable statute
or regulation.
Section 1.02 Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer will furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Notwithstanding the provisions of Section 3.10 and of the
preceding paragraph, if all Notes of a Tranche are not to be originally issued
at one time, it will not be necessary to deliver the Issuer Certificate
otherwise required pursuant to Section 3.10 or the Officer's Certificate and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at
or before the time of authentication of each Note of such Tranche if such
documents are delivered at or prior to the authentication upon original
issuance of the first Note of such Tranche to be issued.
The Indenture Trustee may rely, as to authorization by the Issuer
of any Tranche of Notes, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and the other documents delivered pursuant to Section 3.10 and this
Section 1.02, as applicable, in connection with the first authentication of
Notes of such Tranche.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 10.04) will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that such individual has made such examination or
investigation as is necessary to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, one or more specified Persons, one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to the other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless the Issuer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations are erroneous. Any such certificate or opinion of, or
representation by, counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, the Issuer
stating that the information with respect to such factual matters is in the
possession of the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action (collectively, an "Action") provided by this
Indenture to be given or taken by Noteholders of any Series, Class or Tranche
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by an agent duly
appointed in writing. If Notes of a Series, Class or Tranche are issuable in
whole or in part as Bearer Notes, any Action provided by this Indenture to be
given or taken by such Noteholders may, alternatively, be embodied in and
evidenced by the record of such Noteholders voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Noteholders
duly called and held in accordance with the provisions of Section 8.04, or a
combination of such instruments and any such record. Except as herein
otherwise expressly provided, such Action will become effective when such
instrument or instruments or record are delivered to the Indenture Trustee,
and, where it is hereby expressly required, to the Issuer. Such instrument or
instruments and any such record (and the Action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Noteholders
signing such instrument or instruments and so voting at any meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Note, will be sufficient for any purpose of
this Indenture and (subject to Section 7.01) conclusive in favor of the
Indenture Trustee and the Issuer, if made in the manner provided in this
Section 1.04. The record of any meeting of Noteholders shall be proved in the
manner provided in Section 8.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a corporation or a
member of a partnership, on behalf of such corporation or partnership, such
certificate or affidavit will also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by the
Note Register.
(ii) The ownership of Bearer Notes or coupons will
be proved by the production of such Bearer Notes or coupons or by a
certificate, satisfactory to the Issuer, executed, as depository, by
any bank, trust company, recognized securities dealer or depository,
wherever situated, satisfactory to the Issuer. Each such certificate
will be dated and will state that on the date thereof a Bearer Note
or coupon bearing a specified serial number was deposited with or
exhibited to such bank, trust company, recognized securities dealer
or depository by the Person named in such certificate. Any such
certificate may be issued in respect of one or more Bearer Notes or
coupons specified therein. The holding by the Person named in any
such certificate of any Bearer Note specified therein will be
presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding
(A) another certificate bearing a later date issued in respect of the
same Bearer Note or coupon produced, (B) the Bearer Note or coupon
specified in such certificate is produced by some other Person or (C)
the Bearer Note or coupon specified in such certificate has ceased to
be Outstanding.
(d) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal
amount and serial numbers of Bearer Notes held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in
any other manner which the Indenture Trustee deems sufficient; and the
Indenture Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section.
(e) If the Issuer will solicit from the Holders any Action, the
Issuer may, at its option, by an Officer's Certificate and consistent with the
Trust Indenture Act, fix in advance a record date for the determination of
Holders entitled to give such Action, but the Issuer will have no obligation
to do so. If the Issuer does not so fix a record date, such record date will
be the later of 30 days before the first solicitation of such Action or the
date of the most recent list of Noteholders furnished to the Indenture Trustee
pursuant to Section 8.01 before such solicitation. Such Action may be given
before or after the record date, but only the Holders of record at the close
of business on the record date will be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Notes
Outstanding have authorized or agreed or consented to such Action, and for
that purpose the Notes Outstanding will be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on
the record date will be deemed effective unless it will become effective
pursuant to the provisions of this Indenture not later than six months after
the record date.
(f) Any Action by the Holder of any Note will bind the Holder of
every Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon whether or not notation of such
Action is made upon such Note.
(g) Without limiting the foregoing, a Holder entitled hereunder to
take any Action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or
more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount. Any
notice given or Action taken by a Holder or its agents with regard to
different parts of such principal amount pursuant to this paragraph shall have
the same effect as if given or taken by separate Holders of each such
different part.
(h) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 3.01 or pursuant to one or more
Indentures Supplements, a Holder, including a Depository that is the Holder of
a Global Note, may make, give or take, by a proxy or proxies duly appointed in
writing, any Action provided in this Indenture to be made, given or taken by
Holders, and a Depository that is the Holder of a Global Note may provide its
proxy or proxies to the beneficial owners of interests in any such Global Note
through such Depository's standing instructions and customary practices.
(i) The Issuer may fix a record date for the purpose of
determining the Persons who are beneficial owners of interests in any Global
Note held by a Depository entitled under the procedures of such Depository to
make, give or take, by a proxy or proxies duly appointed in writing, any
Action provided in this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such Action, whether or not such Holders remain Holders after
such record date. No such Action shall be valid or effective if made, given or
taken more than 90 days after such record date.
Section 1.05 Notices, etc., to Indenture Trustee and Issuer. Any
Action of Noteholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Indenture
Trustee by any Noteholder or by the Issuer will be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Indenture Trustee at its Corporate Trust Office, or the Issuer by the
Indenture Trustee or by any Noteholder will be sufficient for every purpose
hereunder (except as provided in subsection 6.01(c)) if in writing and mailed,
first-class postage prepaid, to the Issuer addressed to it at the address of
its principal office specified in the first paragraph of this Indenture or at
any other address previously furnished in writing to the Indenture Trustee by
the Issuer.
Section 1.06 Notices to Noteholders; Waiver.
(a) Where this Indenture, any Indenture Supplement or any
Registered Note provides for notice to Registered Noteholders of any event,
such notice will be sufficiently given (unless otherwise herein, in such
Indenture Supplement or in such Registered Note expressly provided) if in
writing and mailed, first-class postage prepaid, sent by facsimile, sent by
electronic transmission or personally delivered to each Holder of a Registered
Note affected by such event, at such Noteholder's address as it appears in the
Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Registered Noteholders is given by mail, facsimile, electronic
transmission or delivery neither the failure to mail, send by facsimile,
electronic transmission or deliver such notice, nor any defect in any notice
so mailed, to any particular Noteholders will affect the sufficiency of such
notice with respect to other Noteholders and any notice that is mailed, sent
by facsimile, electronic transmission or delivered in the manner herein
provided shall conclusively have been presumed to have been duly given.
Where this Indenture, any Indenture Supplement or any Registered
Note provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the
event, and such waiver will be the equivalent of such notice. Waivers of
notice by Registered Noteholders will be filed with the Indenture Trustee, but
such filing will not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or otherwise, it will be impractical to
mail notice of any event to any Holder of a Registered Note when such notice
is required to be given pursuant to any provision of this Indenture, then any
method of notification as will be satisfactory to the Indenture Trustee and
the Issuer will be deemed to be a sufficient giving of such notice.
(c) No notice will be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons in
bearer form. In the case of any Series, Class or Tranche with respect to which
any Bearer Notes are Outstanding, any notice required or permitted to be given
to Holders of such Bearer Notes will be published in an Authorized Newspaper
within the time period prescribed in this Indenture or the applicable
Indenture Supplement.
(d) With respect to any Series, Class or Tranche of Notes, the
applicable Indenture Supplement may specify different or additional means of
giving notice to the Holders of the Notes of such Series, Class or Tranche.
(e) Where this Indenture provides for notice to any Note Rating
Agency, failure to give such notice will not affect any other rights or
obligations created hereunder and will not under any circumstance constitute
an Adverse Effect.
Section 1.07 Conflict with Trust Indenture Act. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by, or with another provision (an "incorporated
provision") included in this Indenture by operation of, Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties or incorporated
provision will control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision will be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and will not affect the construction hereof.
Section 1.09 Successors and Assigns. All covenants and agreements
in this Indenture by the Issuer will bind its successors and assigns, whether
so expressed or not. All covenants and agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents of the
Indenture Trustee.
Section 1.10 Separability. In case any provision in this Indenture
or in the Notes will be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
Section 1.11 Benefits of Indenture. Nothing in this Indenture or
in any Notes, express or implied, will give to any Person, other than the
parties hereto and their successors hereunder, the Collateral Agent, any
Authenticating Agent or Paying Agent, the Note Registrar, Derivative
Counterparties (to the extent specified in the applicable Derivative
Agreement), Supplemental Credit Enhancement Providers and Supplemental
Liquidity Providers (each, to the extent specified in the applicable
Supplemental Credit Enhancement Agreement or Supplemental Liquidity Agreement,
as applicable) and the Holders of Notes (or such of them as may be affected
thereby), any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 1.12 Governing Law. THIS INDENTURE WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 1.13 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 1.14 Indenture Referred to in the Trust Agreement. This is
the Indenture referred to in the Trust Agreement.
Section 1.15 Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
[END OF ARTICLE I]
ARTICLE II
NOTE FORMS
Section 2.01 Forms Generally. The Notes will have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or the applicable Indenture Supplement and may
have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon, as may be required to comply with applicable
laws or regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Issuer, as evidenced by the
Issuer's execution of such Notes. Any portion of the text of any Note may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Note.
The definitive Notes will be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel engraved borders) or may be produced in any other manner, all as
determined by the Issuer, as evidenced by the Issuer's execution of such
Notes, subject, with respect to the Notes of any Series, Class or Tranche, to
the rules of any securities exchange on which such Notes are listed.
Section 2.02 Forms of Notes. Each Note will be in one of the forms
approved from time to time by or pursuant to an Indenture Supplement. Before
the delivery of a Note to the Indenture Trustee for authentication in any form
approved by or pursuant to an Issuer Certificate, the Issuer will deliver to
the Indenture Trustee the Issuer Certificate by or pursuant to which such form
of Note has been approved, which Issuer Certificate will have attached thereto
a true and correct copy of the form of Note which has been approved thereby
or, if an Issuer Certificate authorizes a specific officer or officers of the
Beneficiary to approve a form of Note, a certificate of such officer or
officers approving the form of Note attached thereto. Any form of Note
approved by or pursuant to an Issuer Certificate must be acceptable as to form
to the Indenture Trustee, such acceptance to be evidenced by the Indenture
Trustee's authentication of Notes in that form or a certificate signed by an
Indenture Trustee Authorized Officer and delivered to the Issuer.
Section 2.03 Form of Indenture Trustee's Certificate of
Authentication. The form of Indenture Trustee's Certificate of Authentication
for any Note issued pursuant to this Indenture will be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Series, Class or Tranche
designated therein referred to in the within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Indenture Trustee,
By: _____________________________
Authorized Signatory
Dated: __________________________
Section 2.04 Notes Issuable in the Form of a Global Note.
(a) If the Issuer establishes pursuant to Sections 2.02 and 3.01
that the Notes of a particular Series, Class or Tranche are to be issued in
whole or in part in the form of one or more Global Notes, then the Issuer will
execute and the Indenture Trustee or its agent will, in accordance with
Section 3.03 and the Issuer Certificate delivered to the Indenture Trustee or
its agent thereunder, authenticate and deliver, such Global Note or Notes,
which, unless otherwise provided in the applicable Indenture Supplement (i)
will represent, and will be denominated in an amount equal to the aggregate
Stated Principal Amount (or in the case of Discount Notes, the aggregate
Stated Principal Amount at the Scheduled Principal Payment Date of such Notes)
of the Outstanding Notes of such Series, Class or Tranche to be represented by
such Global Note or Notes, or such portion thereof as the Issuer will specify
in an Issuer Certificate, (ii) in the case of Registered Notes, will be
registered in the name of the Depository for such Global Note or Notes or its
nominee, (iii) will be delivered by the Indenture Trustee or its agent to the
Depository or pursuant to the Depository's instruction, (iv) if applicable,
will bear a legend substantially to the following effect: "Unless this Note is
presented by an authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), to the Issuer or its agent for registration of
transfer, exchange or payment, and any Note issued is registered in the name
of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), any transfer,
pledge or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein" and (v) may bear such other legend as the Issuer, upon advice of
counsel, deems to be applicable.
(b) Notwithstanding any other provisions of this Section 2.04 or
of Section 3.05, and subject to the provisions of paragraph (c) below, unless
the terms of a Global Note or the applicable Indenture Supplement expressly
permit such Global Note to be exchanged in whole or in part for individual
Notes, a Global Note may be transferred, in whole but not in part and in the
manner provided in Section 3.05, only to a nominee of the Depository for such
Global Note, or to the Depository, or a successor Depository for such Global
Note selected or approved by the Issuer, or to a nominee of such successor
Depository.
(c) With respect to Notes issued within the United States, unless
otherwise specified in the applicable Indenture Supplement, or with respect to
Notes issued outside the United States, if specified in the applicable
Indenture Supplement:
(i) If at any time the Depository for a Global Note
notifies the Issuer that it is unwilling or unable to continue as
Depository for such Global Note or if at any time the Depository for
the Notes for such Series, Class or Tranche ceases to be a clearing
agency registered under the Securities Exchange Act, or other
applicable statute or regulation, the Issuer will appoint a successor
Depository with respect to such Global Note. If a successor
Depository for such Global Note is not appointed by the Issuer within
90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer will execute, and the Indenture
Trustee or its agent, upon receipt of an Issuer Certificate
requesting the authentication and delivery of individual Notes of
such Series, Class or Tranche in exchange for such Global Note, will
authenticate and deliver, individual Notes of such Series, Class or
Tranche of like tenor and terms in an aggregate Stated Principal
Amount equal to the Stated Principal Amount of the Global Note in
exchange for such Global Note.
(ii) The Issuer may at any time and in its sole
discretion determine that the Notes of any Series, Class or Tranche
or portion thereof issued or issuable in the form of one or more
Global Notes will no longer be represented by such Global Note or
Notes. In such event the Issuer will execute, and the Indenture
Trustee, upon receipt of a written request by the Issuer for the
authentication and delivery of individual Notes of such Series, Class
or Tranche in exchange in whole or in part for such Global Note, will
authenticate and deliver individual Notes of such Series, Class or
Tranche of like tenor and terms in definitive form in an aggregate
Stated Principal Amount equal to the Stated Principal Amount of such
Global Note or Notes representing such Series, Class or Tranche or
portion thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to
Sections 2.02 and 3.01 with respect to Notes issued or issuable in
the form of a Global Note, the Depository for such Global Note may
surrender such Global Note in exchange in whole or in part for
individual Notes of such Series, Class or Tranche of like tenor and
terms in definitive form on such terms as are acceptable to the
Issuer and such Depository. Thereupon the Issuer will execute, and
the Indenture Trustee or its agent will authenticate and deliver,
without service charge, (A) to each Person specified by such
Depository a new Note or Notes of the same Series, Class or Tranche
of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate Stated Principal Amount equal
to and in exchange for such Person's beneficial interest in the
Global Note; and (B) to such Depository a new Global Note of like
tenor and terms and in an authorized denomination equal to the
difference, if any, between the Stated Principal Amount of the
surrendered Global Note and the aggregate Stated Principal Amount of
Notes delivered to the Holders thereof.
(iv) If any Event of Default has occurred with
respect to such Global Notes, and Holders of Notes evidencing more
than 50% of the unpaid Outstanding Dollar Principal Amount of the
Global Notes of that Series, Class or Tranche advise the Indenture
Trustee and the Depository that a Global Note is no longer in the
best interest of the Noteholders, the Holders of Global Notes may
exchange such Notes for individual Notes.
(v) In any exchange provided for in any of the
preceding three paragraphs, the Issuer will execute and the Indenture
Trustee or its agent will authenticate and deliver individual Notes
in definitive registered form in authorized denominations. Upon the
exchange of the entire Stated Principal Amount of a Global Note for
individual Notes, such Global Note will be canceled by the Indenture
Trustee or its agent. Except as provided in the preceding paragraphs,
Notes issued in exchange for a Global Note pursuant to this Section
2.04 will be registered in such names and in such authorized
denominations as the Depository for such Global Note, pursuant to
instructions from its direct or indirect participants or otherwise,
will instruct the Indenture Trustee or the Note Registrar. The
Indenture Trustee or the Note Registrar will deliver such Notes to
the Persons in whose names such Notes are so registered.
Section 2.05 Temporary Global Notes and Permanent Global Notes.
(a) If specified in the applicable Indenture Supplement for any
Tranche, all or any portion of a Global Note may initially be issued in the
form of a single temporary global Bearer Note or Registered Note (the
"Temporary Global Note"), without interest coupons, in the denomination of the
entire aggregate principal amount of such Series, Class or Tranche and
substantially in the form set forth in the exhibit with respect thereto
attached to the applicable Indenture Supplement. The Temporary Global Note
will be authenticated by the Indenture Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Notes in
definitive form. The Temporary Global Note may be exchanged as described below
or in the applicable Indenture Supplement for permanent global Bearer Notes or
Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes for
beneficial interests in Permanent Global Notes will be made as provided in
this subsection 2.05(b). The Beneficiary will, upon its determination of the
date of completion of the distribution of the Notes of such Series, Class or
Tranche, so advise the Indenture Trustee, the Issuer, the Foreign Depository,
and each foreign clearing agency forthwith. Without unnecessary delay, but in
any event not prior to the Exchange Date, the Issuer will execute and deliver
to the Indenture Trustee at the office or its designated agent outside the
United States Permanent Global Notes in bearer or registered form (as
specified in the applicable Indenture Supplement) in an aggregate principal
amount equal to the Outstanding Dollar Principal Amount of such Series, Class
or Tranche of Notes. Bearer Notes so issued and delivered may have coupons
attached. The Temporary Global Note may be exchanged for an equal aggregate
principal amount of Permanent Global Notes only on or after the Exchange Date.
A United States Person may exchange the portion of the Temporary Global Note
beneficially owned by it only for an equal aggregate principal amount of
Permanent Global Notes in registered form bearing the applicable legend set
forth in the form of Registered Note attached to the applicable Indenture
Supplement, which may be in temporary form if the Issuer so elects. Upon any
demand for exchange for Permanent Global Notes in accordance with this clause,
the Issuer will cause the Indenture Trustee to authenticate and deliver the
Permanent Global Notes to the Holder (x) outside the United States, in the
case of Bearer Notes and (y) according to the instructions of the Holder, in
the case of Registered Notes, but in either case only upon presentation to the
Indenture Trustee of a written statement substantially in the form of Exhibit
B-1 (or such other form as the Issuer may determine) with respect to the
Temporary Global Note, or portion thereof being exchanged, signed by a foreign
clearing agency or Foreign Depository and dated the Exchange Date or a
subsequent date, to the effect that it has received in writing or by tested
telex a certification substantially in the form of (i) in the case of
beneficial ownership of the Temporary Global Note, or a portion thereof being
exchanged, by a United States institutional investor pursuant to this clause,
the certificate in the form of Exhibit B-2 (or such other form as the Issuer
may determine) signed by the Beneficiary which sold the relevant Notes or (ii)
in all other cases, the certificate in the form of Exhibit B-3 (or such other
form as the Issuer may determine), the certificate referred to in this
subsection 2.05(b) being dated on the earlier of the first payment of interest
in respect of such Note and the date of the delivery of such Note in
definitive form. Upon receipt of such certification, the Indenture Trustee
will cause the Temporary Global Note to be endorsed in accordance with
subsection 2.05(d). Any exchange as provided in this Section 2.05 will be made
free of charge to the Holders and the beneficial owners of the Temporary
Global Note and to the beneficial owners of the Permanent Global Note issued
in exchange, except that a person receiving the Permanent Global Note must
bear the cost of insurance, postage, transportation and the like in the event
that such Person does not receive such Permanent Global Note in person at the
offices of a foreign clearing agency or Foreign Depository.
(c) The delivery to the Indenture Trustee by a foreign clearing
agency or Foreign Depository of any written statement referred to above may be
relied upon by the Issuer and the Indenture Trustee as conclusive evidence
that a corresponding certification or certifications has or have been
delivered to such foreign clearing agency pursuant to the terms of this
Indenture.
(d) Upon any such exchange of all or a portion of the Temporary
Global Note for a Permanent Global Note or Notes, such Temporary Global Note
will be endorsed by or on behalf of the Indenture Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate
principal amount of such Permanent Global Note or Notes. Until so exchanged in
full, such Temporary Global Note will in all respects be entitled to the same
benefits under this Indenture as Permanent Global Notes authenticated and
delivered hereunder except that the beneficial owners of such Temporary Global
Note will not be entitled to receive payments of interests on the Notes until
they have exchanged their beneficial interests in such Temporary Global Note
for Permanent Global Notes.
Section 2.06 Beneficial Ownership of Global Notes. Until
definitive Notes have been issued to the applicable Noteholders pursuant to
Section 2.04 or as otherwise specified in any applicable Indenture Supplement:
(a) the Issuer and the Indenture Trustee may deal with the
applicable clearing agency or Depository and the clearing agency's or
Depository's participants for all purposes (including the making of
distributions) as the authorized representatives of the respective Note
Owners; and
(b) the rights of the respective Note Owners will be exercised
only through the applicable clearing agency or Depository and the clearing
agency's or Depository's participants and will be limited to those established
by law and agreements between such Note Owners and the clearing agency or
Depository and/or the clearing agency's or Depository's participants. Pursuant
to the operating rules of the applicable clearing agency, unless and until
Notes in definitive form are issued pursuant to Section 2.04, the clearing
agency or the Depository will make book-entry transfers among the clearing
agency's or the Depository's participants and receive and transmit
distributions of principal and interest on the related Notes to such clearing
agency's or Depository's participants.
For purposes of any provision of this Indenture requiring or
permitting Actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the Outstanding Dollar Principal Amount
of Outstanding Notes, such direction or consent may be given by Note Owners
(acting through the clearing agency and the clearing agency's participants)
owning interests in Notes evidencing the requisite percentage of principal
amount of Notes.
Section 2.07 Notices to Depository. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry Notes have been issued, unless and until Notes in definitive form
will have been issued to the related Note Owners, the Indenture Trustee will
give all such notices and communications to the applicable clearing agency or
Depository.
[END OF ARTICLE II]
ARTICLE III
THE NOTES
Section 3.01 General Title; General Limitations; Issuable in
Series; Terms of a Series, Class or Tranche of Notes.
(a) The aggregate Stated Principal Amount of Notes which may be
authenticated and delivered and Outstanding under this Indenture is not
limited.
(b) The Notes may be issued in one or more Series, Classes or
Tranches up to an aggregate Stated Principal Amount of Notes as from time to
time may be authorized by the Issuer. All Notes of each Series, Class or
Tranche under this Indenture will in all respects be equally and ratably
entitled to the benefits hereof with respect to such Series, Class or Tranche
without preference, priority or distinction on account of the actual time of
the authentication and delivery or Scheduled Principal Payment Date or Legal
Maturity Date of the Notes of such Series, Class or Tranche, except as
specified in the applicable Indenture Supplement for such Series, Class or
Tranche of Notes.
(c) Each Note issued must be part of a Series, Class and Tranche
of Notes for purposes of allocations pursuant to the related Asset Pool
Supplement and the related Indenture Supplement. A Series of Notes is created
pursuant to an Indenture Supplement. A Class or Tranche of Notes is created
pursuant to an Indenture Supplement or pursuant to a Terms Document related to
the Indenture Supplement for the applicable Series.
(d) Each Series of Notes will be secured by a particular Asset
Pool. The related Indenture Supplement will identify the Asset Pool under
which a Series of Notes has been issued.
(e) Each Series of Notes may be assigned to a Group or Groups (now
existing or hereafter created) of Notes for purposes of allocations of certain
collections pursuant to Section 3.12, the related Asset Pool Supplement and
the related Indenture Supplement. The related Indenture Supplement will
identify the Group or Groups, if any, to which a Series of Notes has been
assigned and the manner and extent to which Series in the same Group or Groups
will share certain amounts.
(f) Each Series of Notes may, but need not be, subdivided into
multiple Classes. Notes belonging to a Class in any Series may be entitled to
specified payment priorities over other Classes of Notes in that Series.
(g) Notes of a Series that belong to different Classes in that
Series belong to different Tranches on the basis of the difference in Class
membership.
(h) Each Class of Notes may consist of a single Tranche or may be
subdivided into multiple Tranches. Notes of a single Class of a Series will
belong to different Tranches if they have different terms and conditions. With
respect to any Class of Notes, Notes which have identical terms, conditions
and Tranche designation will be deemed to be part of a single Tranche of
Notes.
(i) Before the initial issuance of Notes of each Series, Class or
Tranche, there shall also be established in or pursuant to an Indenture
Supplement or pursuant to a Terms Document related to the applicable Indenture
Supplement, provision for:
(i) the Series designation;
(ii) the Asset Pool designation;
(iii) the Stated Principal Amount of the Notes;
(iv) whether such Series belongs to any Group or Groups;
(v) whether such Notes are of a particular Class of Notes or
a Tranche of a Class of Notes;
(vi) the Required Subordinated Amount (if any) for such
Class or Tranche of Notes;
(vii) the currency or currencies in which such Notes will be
denominated and in which payments of principal of, and interest on, such
Notes will or may be payable;
(viii) if the principal of or interest, if any, on such
Notes are to be payable, at the election of the Issuer or a Holder
thereof, in a currency or currencies other than that in which the Notes
are stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(ix) if the amount of payments of principal of or interest,
if any, on such Notes may be determined with reference to an index based
on (A) a currency or currencies other than that in which the Notes are
stated to be payable, (B) changes in the prices of one or more other
securities or Groups or indexes of securities or (C) changes in the
prices of one or more commodities or Groups or indexes of commodities, or
any combination of the foregoing, the manner in which such amounts will
be determined;
(x) the price or prices at which such Series, Class or
Tranche of Notes will be issued;
(xi) the times at which such Series, Class or Tranche of
Notes may, pursuant to any optional or mandatory redemption provisions,
be redeemed, and the other terms and provisions of any such redemption
provisions;
(xii) the rate per annum at which such Series, Class or
Tranche of Notes will bear interest, if any, or the formula or index on
which such rate will be determined, including all relevant definitions,
and the date from which interest will accrue;
(xiii) each Interest Payment Date, the Scheduled Principal
Payment Date and the Legal Maturity Date for such Series, Class or
Tranche of Notes;
(xiv) the Initial Dollar Principal Amount of such Notes, and
the means for calculating the Outstanding Dollar Principal Amount of such
Series, Class or Tranche of Notes;
(xv) the Nominal Liquidation Amount of such Series, Class or
Tranche of Notes, and the means for calculating the Nominal Liquidation
Amount of such Series, Class or Tranche of Notes;
(xvi) whether or not application will be made to list such
Series, Class or Tranche of Notes on any securities exchange;
(xvii) any Events of Default or Early Amortization Events
with respect to such Series, Class or Tranche of Notes, if not set forth
herein and any additions, deletions or other changes to the Events of
Default or Early Amortization Events set forth herein that will be
applicable to such Series, Class or Tranche of Notes (including a
provision making any Event of Default or Early Amortization Event set
forth herein inapplicable to the Notes of that Series, Class or Tranche);
(xviii) the appointment by the Indenture Trustee of an
Authenticating Agent in one or more places with power to act on behalf of
the Indenture Trustee and subject to its direction in the authentication
and delivery of such Notes in connection with such transactions as will
be specified in the provisions of this Indenture or in or pursuant to the
applicable Indenture Supplement creating such Series, Class or Tranche;
(xix) if such Notes will be issued in whole or in part in
the form of a Global Note or Global Notes, the terms and conditions, if
any, upon which such Global Note or Global Notes may be exchanged in
whole or in part for other individual Notes; and the Depository for such
Global Note or Global Notes (if other than the Depository specified in
Section 1.01);
(xx) if such Notes will be issued in whole or in part as
Registered Notes, Bearer Notes or both, whether such Notes are to be
issued with or without coupons or both;
(xxi) the subordination of such Notes to any other
indebtedness of the Issuer, including without limitation, the Notes of
any other Series, Class or Tranche;
(xxii) if such Notes are to have the benefit of any
Derivative Agreement, the terms and provisions of such agreement;
(xxiii) if such Notes are to have the benefit of any
Supplemental Credit Enhancement Agreement or Supplemental Liquidity
Agreement, the terms and provisions of the applicable agreement;
(xxiv) the Record Date for any Payment Date of such Notes,
if different from the last day of the month before the related Payment
Date;
(xxv) the Target Principal Deposit Amount scheduled to be
deposited on each Principal Payment Date during an amortization period or
accumulation period for such Series, Class or Tranche of Notes;
(xxvi) whether and under what conditions, additional amounts
will be payable to Noteholders; and
(xxvii) any other terms of such Notes as stated in the
related Indenture Supplement;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such Series, Class or Tranche of Notes.
(j) The form of the Notes of each Series, Class or Tranche will be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement or Terms Document creating such Series, Class or Tranche
of Notes. The Notes of each Series, Class or Tranche will be distinguished
from the Notes of each other Series, Class or Tranche in such manner,
reasonably satisfactory to the Indenture Trustee, as the Issuer may determine.
(k) Any terms or provisions in respect of the Notes of any Series,
Class or Tranche issued under this Indenture may be determined pursuant to
this Section 3.01 by providing in the applicable Indenture Supplement the
method by which such terms or provisions will be determined.
(l) The Transferor Interest for each Asset Pool will be held by
the Transferor. The Transferor Interest for each Asset Pool may be transferred
by the holder of such Transferor Interest in whole or in part subject to
certain limitations and conditions described in the Indenture Supplements
related to such Asset Pool. The Transferor Interest for each Asset Pool may be
held either in an uncertificated form or in the form of a certificate
representing the Transferor Interest, called a Transferor Certificate.
Section 3.02 Denominations. The Notes of each Series, Class or
Tranche will be issuable in such denominations and currency as will be
provided in the provisions of this Indenture or in or pursuant to the
applicable Indenture Supplement. In the absence of any such provisions with
respect to the Registered Notes of any Series, Class or Tranche, the
Registered Notes of that Series, Class or Tranche will be issued in
denominations of $1,000 and multiples thereof. In the absence of any such
provisions with respect to the Bearer Notes of any Series, Class or Tranche,
the Bearer Notes of that Series, Class or Tranche will be issued in
denominations of 1,000, 5,000, 50,000 and 100,000 units of the applicable
currency.
Section 3.03 Execution, Authentication and Delivery and Dating.
(a) The Notes will be executed on behalf of the Issuer by an
Issuer Authorized Officer. The signature of any officer of the Beneficiary or
the Owner Trustee on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time an Issuer Authorized Officer will bind the
Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices before the authentication and delivery of such Notes or did
not hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the
Issuer to the Indenture Trustee for authentication; and the Indenture Trustee
will, upon request by an Officer's Certificate, authenticate and deliver such
Notes as in this Indenture provided and not otherwise.
(d) Before any such authentication and delivery, the Indenture
Trustee will be entitled to receive, in addition to any Officer's Certificate
and Opinion of Counsel required to be furnished to the Indenture Trustee
pursuant to Section 1.02, the Issuer Certificate and any other opinion or
certificate relating to the issuance of the Series, Class or Tranche of Notes
required to be furnished pursuant to Section 2.02 or Section 3.10.
(e) The Indenture Trustee will not be required to authenticate
such Notes if the issue thereof will adversely affect the Indenture Trustee's
own rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any Series,
Class or Tranche, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
Certificate of Authentication substantially in the form provided for herein
executed by the Indenture Trustee by manual signature of an authorized
signatory, and such certificate upon any Note will be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 3.04 Temporary Notes.
(a) Pending the preparation of definitive Notes of any Series,
Class or Tranche, the Issuer may execute, and, upon receipt of the documents
required by Section 3.03, together with an Officer's Certificate, the
Indenture Trustee will authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Issuer may determine, as evidenced
by the Issuer's execution of such Notes.
(b) If temporary Notes of any Series, Class or Tranche are issued,
the Issuer will cause definitive Notes of such Series, Class or Tranche to be
prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes of such Series, Class or Tranche will be
exchangeable for definitive Notes of such Series, Class or Tranche upon
surrender of the temporary Notes of such Series, Class or Tranche at the
office or agency of the Issuer in a Place of Payment, without charge to the
Holder; and upon surrender for cancellation of any one or more temporary Notes
the Issuer will execute and the Indenture Trustee will authenticate and
deliver in exchange therefor a like Stated Principal Amount of definitive
Notes of such Series, Class or Tranche of authorized denominations and of like
tenor and terms. Until so exchanged the temporary Notes of such Series, Class
or Tranche will in all respects be entitled to the same benefits under this
Indenture as definitive Notes of such Series, Class or Tranche.
Section 3.05 Registration, Transfer and Exchange.
(a) The Issuer will keep or cause to be kept a register (herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer will provide for the
registration of Registered Notes, or of Registered Notes of a particular
Series, Class or Tranche, and for transfers of Registered Notes or of
Registered Notes of such Series, Class or Tranche. Any such register will be
in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times the information
contained in such register or registers will be available for inspection by
the Indenture Trustee at the office or agency to be maintained by the Issuer
as provided in Section 10.02.
(b) Subject to Section 2.04, upon surrender for transfer of any
Registered Note of any Series, Class or Tranche at the office or agency of the
Issuer in a Place of Payment, if the requirements of Section 8-401(a) of the
UCC are met, the Issuer will execute, and, upon receipt of such surrendered
Note, the Indenture Trustee will authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Notes of such
Series, Class or Tranche of any authorized denominations, of a like aggregate
Stated Principal Amount, Scheduled Principal Payment Date and Legal Maturity
Date and of like terms.
(c) Subject to Section 2.04, at the option of the Holder, Notes of
any Series, Class or Tranche may be exchanged for other Notes of such Series,
Class or Tranche of any authorized denominations, of a like aggregate Stated
Principal Amount, Scheduled Principal Payment Date and Legal Maturity Date and
of like terms, upon surrender of the Notes to be exchanged at such office or
agency. Registered Notes, including Registered Notes received in exchange for
Bearer Notes, may not be exchanged for Bearer Notes. At the option of the
Holder of a Bearer Note, subject to applicable laws and regulations, Bearer
Notes may be exchanged for other Bearer Notes or Registered Notes (of the same
Series, Class and Tranche of Notes) of authorized denominations of like
aggregate fractional undivided interests in the Noteholders' interest, upon
surrender of the Bearer Notes to be exchanged at an office or agency of the
Note Registrar located outside the United States. Each Bearer Note surrendered
pursuant to this Section 3.05 will have attached thereto all unmatured
coupons; provided, however, that any Bearer Note, so surrendered after the
close of business on the last day of the month preceding the relevant Payment
Date need not have attached the coupon relating to such Payment Date. Whenever
any Notes are so surrendered for exchange, the Issuer will execute, and the
Trustee will authenticate and deliver (in the case of Bearer Notes, outside
the United Sates), the Notes which the Noteholders making the exchange are
entitled to receive.
(d) All Notes issued upon any transfer or exchange of Notes will
be the valid and legally binding obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or exchange
will (if so required by the Issuer or the Indenture Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred or
exchanged, no service charge will be made on any Noteholder for any transfer
or exchange of Notes, but the Issuer may (unless otherwise provided in such
Note) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Notes, other than exchanges pursuant to Section 3.04 or 9.06 not
involving any transfer.
(g) None of the Issuer, the Note Registrar or the Indenture
Trustee shall be required (i) to issue, register the transfer of or exchange
any Notes of any Series, Class or Tranche during a period beginning at the
opening of business 15 days before the day of selection of Notes of such
Series, Class or Tranche to be redeemed and ending at the close of business on
(A) if Notes of such Series, Class or Tranche are issuable only as Registered
Notes, the day of the mailing of the relevant notice of redemption of
Registered Notes of such Series, Class or Tranche so selected for redemption
or (B) if Notes of the Series, Class or Tranche are issuable as Bearer Notes,
the day of the first publication of the relevant notice of redemption or, if
Notes of the Series, Class or Tranche are also issuable as Registered Notes
and there is no publication, the mailing of the relevant notice of redemption
or (ii) to register the transfer or exchange of any Notes or portions thereof
so selected for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Notes into Registered Notes shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Issuer, the
Indenture Trustee nor the Note Registrar shall exchange any Bearer Notes into
Registered Notes if it has received an Opinion of Counsel that as a result of
such exchanges the Issuer or any Transferor would suffer adverse consequences
under the United States federal income tax laws and regulations then in effect
and the Issuer has delivered to the Indenture Trustee an Issuer Certificate
directing the Trustee not to make such exchanges unless and until the
Indenture Trustee receives a subsequent Issuer Certificate to the contrary.
The Issuer shall deliver copies of such Issuer Certificates to the Note
Registrar.
(h) None of the Issuer, the Indenture Trustee, any agent of the
Indenture Trustee, any Paying Agent or the Note Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
(i) The Issuer initially appoints Xxxxx Fargo Bank Minnesota,
National Association to act as Note Registrar for the Registered Notes on its
behalf. The Issuer may at any time and from time to time authorize any Person
to act as Note Registrar with respect to any Series, Class or Tranche of Notes
issued under this Indenture.
(j) Registration of transfer of Notes containing the following
legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY
APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS. THE TRANSFER OF THIS NOTE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN."
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from
the registration requirements under the Securities Act other than Rule 144A
under the Securities Act or Rule 903 or Rule 904 of Regulation S under the
Securities Act, the transferor or the transferee will deliver, at its expense,
to the Issuer and the Indenture Trustee, an investment letter from the
transferee, substantially in the form of the investment letter attached hereto
as Exhibit A or such other form as the Issuer may determine, and no
registration of transfer will be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes issued in
exchange for, Notes bearing the legend referred to above will also bear such
legend unless the Issuer, the Trustee and the Note Registrar receive an
Opinion of Counsel, satisfactory to each of them, to the effect that such
legend may be removed.
Whenever a Note containing the legend referred to above is
presented to the Note Registrar for registration of transfer, the Note
Registrar will promptly seek instructions from the Issuer regarding such
transfer and will be entitled to receive an Issuer Certificate prior to
registering any such transfer. The Issuer hereby agrees to indemnify the Note
Registrar and the Indenture Trustee and to hold each of them harmless against
any loss, liability or expense incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by
them in relation to any such instructions furnished pursuant to this clause.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note (together, in the case of Bearer
Notes, with all unmatured coupons, if any, appertaining thereto) is
surrendered to the Indenture Trustee or the Note Registrar, or the Issuer, the
Note Registrar or the Indenture Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Note, and (ii) there is delivered to
the Issuer, the Note Registrar and the Indenture Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Issuer, the Note Registrar or the Indenture
Trustee that such Note has been acquired by a protected purchaser, the Issuer
will execute and upon its request the Indenture Trustee will authenticate and
deliver (in the case of Bearer Notes, outside the United States), in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new
Note of like tenor, Series, Class or Tranche, Scheduled Principal Payment
Date, Legal Maturity Date and Stated Principal Amount, bearing a number not
contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section 3.06, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
(d) Every new Note issued pursuant to this Section 3.06 in lieu of
any destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and
all other Notes of the same Series, Class or Tranche duly issued hereunder.
(e) The provisions of this Section 3.06 are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07 Payment of Interest; Interest Rights Preserved;
Withholding Taxes.
(a) Unless otherwise provided with respect to such Note pursuant
to Section 3.01, interest payable on any Registered Note will be paid to the
Person in whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the most recent Record Date and
interest payable on any Bearer Note will be paid to the bearer of that Note
(or the applicable coupon).
(b) Subject to clause (a), each Note delivered under this
Indenture upon transfer of or in exchange for or in lieu of any other Note
will carry the rights to interest accrued or principal accreted and unpaid,
and to accrue or accrete, which were carried by such other Note.
(c) The right of any Noteholder to receive interest on or
principal of any Note shall be subject to any applicable withholding or
deduction imposed pursuant to the Internal Revenue Code or other applicable
tax law, including foreign withholding and deduction. Any amounts properly so
withheld or deducted shall be treated as actually paid to the appropriate
Noteholder.
Section 3.08 Persons Deemed Owners. Title to any Bearer Note,
including any coupons appertaining thereto, shall pass by delivery. The
Issuer, the Indenture Trustee, the Owner Trustee, the Beneficiary and any
agent of the Issuer, the Indenture Trustee, the Owner Trustee, or the
Beneficiary may treat the Person who is proved to be the owner of such Note
pursuant to subsection 1.04(c) as the owner of such Note for the purpose of
receiving payment of principal of and (subject to Section 3.07) interest on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee, the Owner Trustee, nor
any agent of the Issuer, the Indenture Trustee, the Owner Trustee, or the
Beneficiary will be affected by notice to the contrary.
Section 3.09 Cancellation. All Notes surrendered for payment,
redemption, transfer, conversion or exchange will, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and, if not already canceled, will be promptly canceled by it. The Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered will be promptly
canceled by the Indenture Trustee. No Note will be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. The Indenture Trustee will dispose of
all canceled Notes in accordance with its customary procedures and will
deliver a certificate of such disposition to the Issuer.
Section 3.10 New Issuances of Notes.
(a) The Issuer may issue new Notes of any Series, Class or
Tranche, so long as the following conditions precedent are satisfied:
(i) on or before the third Business Day before a
new issuance is to occur, the Issuer delivers to the Indenture
Trustee and each Note Rating Agency notice of such new issuance;
(ii) on or prior to the date that the new issuance
is to occur, the Issuer delivers to the Indenture Trustee and each
Note Rating Agency an Issuer Certificate to the effect that:
(A) the Issuer reasonably believes that the new
issuance will not cause an Adverse Effect on any Outstanding Notes;
(B) all instruments furnished to the Indenture
Trustee conform to the requirements of this Indenture and constitute
sufficient authority hereunder for the Indenture Trustee to
authenticate and deliver such Notes;
(C) the form and terms of such Notes have been
established in conformity with the provisions of this Indenture; and
(D) such other matters as the Indenture Trustee may
reasonably request;
(iii) on or before the date that the new issuance
is to occur, the Issuer will have delivered to the Indenture Trustee
and each Note Rating Agency an Opinion of Counsel, which may be from
internal counsel, that all laws and requirements with respect to the
execution and delivery by the Issuer of such Notes have been complied
with, the Issuer has the trust power and authority to issue such
Notes and such Notes have been duly authorized and delivered by the
Issuer and, assuming due authentication and delivery by the Indenture
Trustee, constitute legal, valid and binding obligations of the
Issuer enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws and legal principles affecting
creditors' rights generally from time to time in effect and to
general equitable principles, whether applied in an action
at law or in equity) and entitled to the benefits of this Indenture,
equally and ratably with all other Outstanding Notes, if any, of
such Series, Class or Tranche of Notes, subject to the terms of this
Indenture, each Indenture Supplement and each Terms Document;
(iv) if any additional conditions to the new
issuance are specified in writing by a Note Rating Agency to the
Issuer, either (A) the Issuer satisfies such conditions or (B) the
Issuer obtains confirmation from the applicable Note Rating Agency
that the new issuance will not have a Ratings Effect on any
Outstanding Notes;
(v) in the case of Bearer Notes, such Notes shall
be described in section 163(f)(2)(B) of the Internal Revenue Code and
such section shall apply to such Notes;
(vi) on or before the date that the new issuance is
to occur, the Issuer will have delivered to the Indenture Trustee an
Indenture Supplement and, if applicable, the Issuer Certificate or on
or before the date that the new issuance is to occur, the Issuer will
have executed with the Indenture Trustee a Terms Document relating to
the applicable Class or Tranche of Notes;
(vii) in the case of Foreign Currency Notes, the
Issuer will have appointed one or more Paying Agents in the
appropriate countries;
(viii) the conditions specified herein or in
Section 3.11 are satisfied; and
(ix) any other conditions specified in the
applicable Indenture Supplement;
provided, however, that any one of the aforementioned conditions may be
eliminated or modified as a condition precedent to any new issuance of a
Series, Class or Tranche of Notes if the Issuer has obtained approval from
each Note Rating Agency.
(b) The Issuer and the Indenture Trustee will not be required to
provide prior notice to or to obtain the consent of any Noteholder of any
Outstanding Series, Class or Tranche to issue any additional Notes of any
Series, Class or Tranche.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding Class or Tranche of a Series of
Notes, so long as the conditions described in subsection 3.10(a) are met or
waived. As of the date of any additional issuance of Notes of an Outstanding
Class or Tranche of Notes, the Stated Principal Amount, Outstanding Dollar
Principal Amount and Nominal Liquidation Amount of that Class or Tranche will
be increased to reflect the principal amount of the additional Notes. If the
additional Notes are a Class or Tranche of Notes that has the benefit of a
Derivative Agreement, the Issuer will enter into a Derivative Agreement for
the benefit of the additional Notes. In addition, if the additional Notes are
a Class or Tranche of Notes that has the benefit of any Supplemental Credit
Enhancement Agreement or any Supplemental Liquidity Agreement, the issuer will
enter into a Supplemental Credit Enhancement Agreement or Supplemental
Liquidity Agreement, as applicable, for the benefit of the additional Notes.
Furthermore, the targeted deposits, if any, to the Interest Funding Account,
the Principal Funding Account, and if applicable, the Class C Reserve Account,
will be increased proportionately to reflect the principal amount of the
additional Notes.
When issued, the additional Notes of a Class or Tranche will be
identical in all respects to the other Outstanding Notes of that Class or
Tranche and will be equally and ratably entitled to the benefits of the
Indenture and the related Indenture Supplement applicable to such Notes as the
other Outstanding Notes of that Class or Tranche without preference, priority
or distinction.
Section 3.11 Specification of Required Subordinated Amount and
other Terms with Respect to each Series, Class or Tranche of Notes.
(a) The applicable Indenture Supplement for each Class or Tranche
of Notes will specify a Required Subordinated Amount of each subordinated
Class or Tranche of Notes, if any.
(b) The Issuer may change the Required Subordinated Amount, or
method of computing such amount, for any Class or Tranche of Notes at any time
without the consent of any Noteholders so long as the Issuer has (i) received
confirmation from the Note Rating Agencies that have rated any Outstanding
Notes of the Series to which such Class or Tranche belongs that the change in
the Required Subordinated Amount will not result in a Ratings Effect with
respect to any Outstanding Notes of such Series and (ii) delivered to the
Trustee and the Note Rating Agencies an Issuer Tax Opinion.
Section 3.12 Shared Excess Available Finance Charge Collection
Groups and Other Groups. The Issuer shall reallocate and redistribute certain
excess Finance Charge Collections allocated to any Series to cover Series
Available Finance Charge Collections Shortfalls incurred by Series belonging
to any particular Shared Excess Available Finance Charge Collections Group to
the extent and as specified in the related Indenture Supplements. The Issuer
may also establish other Groups for purposes of reallocating other amounts
initially allocated to designated Series to the extent and as specified in the
related Indenture Supplements.
[END OF ARTICLE III]
ARTICLE IV
BANK ACCOUNTS AND INVESTMENTS
Section 4.01 Collections. Except as otherwise expressly provided
in this Indenture, the Indenture Trustee may demand payment or delivery of,
and shall receive and collect, directly and without intervention or assistance
from any fiscal agent or other intermediary, all money and other property
payable to or receivable by the Indenture Trustee pursuant to this Indenture
including, without limitation, all funds and other property payable to the
Indenture Trustee in connection with the Collateral designated for inclusion
in each Asset Pool. The Indenture Trustee will hold all such money and
property received by it as part of the Collateral designated for inclusion in
an Asset Pool and will apply it as provided in this Indenture.
Section 4.02 Bank Accounts.
(a) Bank Accounts; Distributions from Bank Accounts.
(i) On or before the date of initial issuance of
Notes secured by the Collateral designated for inclusion in a
specific Asset Pool, the Issuer will, pursuant to the related Asset
Pool Supplement, cause to be established and maintained for such
Asset Pool one or more Qualified Bank Accounts (each such account as
described in the related Asset Pool Supplement) in the name of the
related Collateral Agent, bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
related Collateral Agent and the applicable Noteholders. From time to
time in connection with the issuance of a Series, Class or Tranche of
Notes, the Indenture Trustee may cause the related Collateral Agent
to establish one or more Qualified Bank Accounts denominated as
"Supplemental Bank Accounts" in the name of the related Collateral
Agent. Each Bank Account shall be under the control (within the
meaning of Section 9-104 of the UCC) of the Collateral Agent for the
applicable Asset Pool for the benefit of the Indenture Trustee, the
applicable Collateral Agent and the applicable Noteholders whose
Notes are secured by the Collateral designated for inclusion in the
applicable Asset Pool. Supplemental Bank Accounts shall be created as
specified in the applicable Asset Pool Supplement or Indenture
Supplement. Any Supplemental Bank Account will receive deposits as
specified in the applicable Asset Pool Supplement or Indenture
Supplement. If, at any time, the institution holding any Bank Account
ceases to be a Qualified Institution, the Issuer shall within 10
Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Note Rating Agency may consent in writing) establish
a new Bank Account that is a Qualified Bank Account and shall
transfer any cash and/or investments from the existing Bank Account
to such new Bank Account.
(b) All payments to be made from time to time by or on behalf of
the Indenture Trustee to Noteholders out of funds in the Bank Accounts for a
particular Asset Pool pursuant to this Indenture will be made as provided in
the applicable Asset Pool Supplement or the applicable Indenture Supplement
but only to the extent of available funds in the applicable Supplemental Bank
Account.
Section 4.03 Investment of Funds in the Bank Accounts.
(a) Funds on deposit in the Bank Accounts will (unless otherwise
stated in the applicable Indenture Supplement) be invested and reinvested by
the related Collateral Agent or its designee acting on behalf of the Indenture
Trustee at the written direction of the Issuer in one or more Permitted
Investments. Absent such written direction, the Collateral Agent shall invest
the funds in the Permitted Investments described in clause (a)(v) of the
definition thereof. The Issuer may authorize the Indenture Trustee to direct
the Collateral Agent to make specific investments pursuant to written
instructions, in such amounts as the Issuer will specify. Notwithstanding the
foregoing, funds held by the Indenture Trustee in any of the Bank Accounts
will be invested in Permitted Investments that will mature in each case no
later than the date on which such funds in the Bank Accounts are scheduled to
be transferred or distributed by the Indenture Trustee pursuant to this
Indenture (or as necessary to provide for timely payment of principal or
interest on the applicable Principal Payment Date or Interest Payment Date).
(b) All funds deposited from time to time in the Bank Accounts
pursuant to this Indenture and all investments made with such funds will be
held by the related Collateral Agent in the Bank Accounts as part of the
Collateral designated for inclusion in such Asset Pool as herein provided,
subject to withdrawal by the Indenture Trustee or the applicable Collateral
Agent, as applicable, for the purposes specified herein.
(c) Funds and other property in any of the Bank Accounts will not
be commingled with any other funds or property of the Issuer, the Indenture
Trustee or the related Collateral Agent. The Indenture Trustee shall cause the
related Collateral Agent to hold all Permitted Investments in a manner
specified in the related Asset Pool Supplement such as to insure that such
Collateral Agent shall have a first priority perfected security interest
therein; provided, that, other than following an Event of Default and
acceleration pursuant to Section 6.02, no Permitted Investment shall be
disposed of prior to its maturity.
(d) On the applicable Note Transfer Date, all interest and
earnings (net of losses and investment expenses) on funds on deposit in the
Bank Accounts will be applied as specified in the applicable Asset Pool
Supplement or Indenture Supplement. Unless otherwise stated in the related
Asset Pool Supplement or Indenture Supplement, for purposes of determining the
availability of funds or the balance in the Bank Accounts for any reason under
this Indenture or any Indenture Supplement, investment earnings on such funds
shall be deemed not to be available or on deposit.
Subject to subsection 7.01(c), the Indenture Trustee will not in
any way be held liable by reason of any insufficiency in such Bank Accounts
resulting from any loss on any Permitted Investment included therein except
for losses attributable to the Indenture Trustee's failure to make payments on
such Permitted Investments issued by the Indenture Trustee, in its commercial
capacity, in accordance with their terms.
(e) Funds on deposit in the Bank Accounts will be invested and
reinvested by the Indenture Trustee or, with respect to Bank Accounts relating
to any Asset Pool, if so required by the Asset Pool Supplement relating to
such Asset Pool, by the applicable Collateral Agent, to the fullest extent
practicable, in such manner as the Indenture Trustee or such Collateral Agent
will from time to time determine, but only in Permitted Investments described
in clause (a)(v) of the definition thereof, upon the occurrence of any of the
following events:
(i) the Issuer will have failed to give investment
directions to the Indenture Trustee or such Collateral Agent; or
(ii) an Event of Default will have occurred and is
continuing but no Notes have been declared due and payable pursuant
to Section 6.02.
[END OF ARTICLE IV]
ARTICLE V
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES
HELD BY THE ISSUER OR FIRST USA
Section 5.01 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 Indenture
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 3.06, 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 10.03) have been
delivered to the Indenture Trustee canceled or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums
payable under the Indenture (including payments to the Indenture Trustee
pursuant to Section 7.07 and to the Collateral Agent pursuant to the Asset
Pool Supplement) by the Issuer with respect to the Notes of that Series, Class
or Tranche; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to the Notes 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
Indenture Trustee with respect to that Series, Class or Tranche of Notes under
Section 7.07 and the obligations of the Indenture Trustee under Sections 5.02
and 10.03 will survive such satisfaction and discharge.
Section 5.02 Application of Trust Money. All money and obligations
deposited with the Indenture Trustee pursuant to Section 5.01 or Section 5.03
and all money received by the Indenture Trustee in respect of such obligations
will be held in trust and applied by it, in accordance with the provisions of
the Series, Class or Tranche of Notes in respect of which it was deposited and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Indenture Trustee
may determine, to the Persons entitled thereto, of the principal and interest
for whose payment that money and obligations have been deposited with or
received by the Indenture Trustee; but that money and obligations need not be
segregated from other funds held by the Indenture Trustee except to the extent
required by law.
Section 5.03 Cancellation of Notes Held by the Issuer or the
Transferor. If the Issuer, the Transferor or any of their Affiliates holds any
Notes, that Holder may, subject to any provisions of a related Indenture
Supplement limiting the repayment of such Notes, by notice from that Holder to
the Indenture Trustee cause the Notes to be canceled, whereupon the Notes will
no longer be Outstanding.
[END OF ARTICLE V]
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.01 Events of Default. "Event of Default," wherever used
herein, means with respect to any Series, Class or Tranche of Notes any one of
the following events (whatever the reason for such Event of Default and
whether it will be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body), unless such event
is either expressly stated to be inapplicable to a particular Series, Class or
Tranche of Notes or specifically deleted or modified in the applicable
Indenture Supplement creating such Series, Class or Tranche of Notes or in the
form of Note for such Series, Class or Tranche:
(a) with respect to such Series, Class or Tranche of Notes, as
applicable, a default by the Issuer in the payment of any interest on such
Notes when such interest becomes due and payable, and continuance of such
default for a period of 35 days following the date on which such interest
became due and payable;
(b) with respect to such Series, Class or Tranche of Notes, as
applicable, a default by the Issuer in the payment of the Stated Principal
Amount of such Tranche of Notes at the applicable Legal Maturity Date;
(c) a default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of such
Series, Class or Tranche (other than a covenant or warranty in respect of the
Notes of such Series, Class or Tranche a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with),
all of such covenants and warranties in this Indenture which are not expressly
stated to be for the benefit of a particular Series, Class and Tranche of
Notes being deemed to be in respect of the Notes of all Series, Classes or
Tranches for this purpose, and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail,
to the Issuer and the Collateral Agent by the Indenture Trustee, to the Issuer
and the Indenture Trustee by the Collateral Agent or to the Issuer, the
Collateral Agent and the Indenture Trustee by the Holders of at least 25% of
the aggregate Outstanding Dollar Principal Amount of the Outstanding Notes of
the affected Series, Class or Tranche, a written notice specifying such
default or breach and requesting it to be remedied and stating that such
notice is a "Notice of Default" hereunder and, as a result of such default,
the interests of the Holders of the Notes of such Series, Class or Tranche are
materially and adversely affected and continue to be materially and adversely
affected during the 90 day period;
(d) the entry of an order for relief against the Issuer under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging the
Issuer as bankrupt or insolvent under any other applicable federal or state
law, or the entry of a decree or order approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Issuer under the Federal Bankruptcy Code or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Issuer or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days;
(e) the consent by the Issuer to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code
or any other applicable federal or state law, or the consent by it to the
filing of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Issuer or
of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Issuer in furtherance of any such action; or
(f) with respect to such Series, Class or Tranche, any additional
Event of Default specified in the Indenture Supplement for such Series, Class
or Tranche of Notes as applying to such Series, Class or Tranche of Notes, or
specified in the form of Note for such Series, Class or Tranche.
Section 6.02 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default described in clause (a), (b), (c) or
(f) (if the Event of Default under clause (c) or (f) is with respect to less
than all Series, Classes and Tranches of Notes then Outstanding) of Section
6.01 occurs and is continuing with respect to any Series, Class or Tranche,
then and in each and every such case, unless the principal of all the Notes of
such Series, Class or Tranche shall have already become due and payable,
either the Indenture Trustee or the Holders of more than 662/3% of the
Outstanding Dollar Principal Amount of the Notes of such Series, Class or
Tranche then Outstanding hereunder (each such Series, Class or Tranche acting
as a separate Class), by notice in writing to the Issuer (and to the Indenture
Trustee if given by the Holders and in all cases with a copy of such notice to
the applicable Collateral Agent), may declare the Outstanding Dollar Principal
Amount of all the Outstanding Notes of such Series, Class or Tranche and all
interest accrued or principal accreted and unpaid (if any) thereon to be due
and payable immediately, and upon any such declaration the same will become
and will be immediately due and payable, anything in this Indenture, the
related Indenture Supplement or in the Notes of such Series, Class or Tranche
to the contrary notwithstanding. Such payments are subject to the allocation
provisions of the applicable Asset Pool Supplement and the allocation,
deposits and payment sections of the related Indenture Supplement.
(b) If an Event of Default described in clause (c) or (f) of
Section 6.01 occurs with respect to all Series, Classes and Tranches of
Outstanding Notes and is continuing, then and in each and every such case,
unless the principal of all the Notes shall have already become due and
payable, either the Indenture Trustee or the Holders of more than 662/3% of
the Outstanding Dollar Principal Amount of all the Outstanding Notes hereunder
(treated as one Class), by notice in writing to the Issuer (and to the
Indenture Trustee if given by Holders ) and in all cases with a copy of such
notice to the applicable Collateral Agent for each Asset Pool with affected
Notes, may declare the Outstanding Dollar Principal Amount of all the Notes
then Outstanding and all interest accrued or principal accreted and unpaid (if
any) thereon to be due and payable immediately, and upon any such declaration
the same will become and will be immediately due and payable, notwithstanding
anything in this Indenture, the related Indenture Supplements or the Notes to
the contrary.
(c) If an Event of Default described in clause (d) or (e) of
Section 6.01 occurs and is continuing, then the Notes of all Series, Classes
and Tranches will automatically be and become immediately due and payable by
the Issuer, without notice or demand to any Person, and the Issuer will
automatically and immediately be obligated to pay off the Notes.
At any time after such a declaration of acceleration has been made
or an automatic acceleration has occurred with respect to the Notes of any
Series, Class or Tranche and before a judgment or decree for payment of the
money due has been obtained by the Collateral Agent and/or the Indenture
Trustee as hereinafter in this Article VI provided, the Holders of more than
662/3% of the Outstanding Dollar Principal Amount of such Series, Classes or
Tranches, by written notice to the Issuer, the Indenture Trustee and the
Collateral Agent, may rescind and annul such declaration and its consequences
if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay (A) all overdue installments of
interest on the Notes of such Series, Class or Tranche, (B) the
principal of any Notes of such Series, Class or Tranche which have
become due otherwise than by such declaration of acceleration, and
interest thereon at the rate or rates prescribed therefor by the
terms of the Notes of such Series, Class or Tranche, to the extent
that payment of such interest is lawful, (C) interest upon overdue
installments of interest at the rate or rates prescribed therefor by
the terms of the Notes of such Series, Class or Tranche to the extent
that payment of such interest is lawful, and (D) all sums paid by the
Indenture Trustee hereunder and the reasonable compensation, expenses
and disbursements of the Indenture Trustee, its agents and counsel
and all other amounts due to the Indenture Trustee under Section 7.07
and the Collateral Agent pursuant to the applicable Asset Pool
Supplement; and
(ii) all Events of Default with respect to such Series,
Class or Tranche of Notes, other than the nonpayment of the principal
of the Notes of such Series, Class or Tranche which has become due
solely by such acceleration, have been cured or waived as provided in
Section 6.16.
No such rescission will affect any subsequent default or impair
any right consequent thereon.
Section 6.03 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee or the Collateral Agent on Behalf of the Indenture
Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any Series,
Class or Tranche of Notes when such interest becomes due and payable and such
default continues for a period of 35 days following the date on which such
interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of any
Series, Class or Tranche of Notes on the Legal Maturity Date thereof;
the Issuer will, upon demand of the Indenture Trustee or the Collateral Agent,
acting on behalf of the Indenture Trustee, pay (subject to the allocation
provided in this Article VI and any related Indenture Supplement) to the
Collateral Agent, on behalf of the Indenture Trustee, for the benefit of the
Holders of any such Notes of the affected Series, Class or Tranche, the whole
amount then due and payable on any such Notes for principal and interest, with
interest, to the extent that payment of such interest will be legally
enforceable, upon the overdue principal and upon overdue installments of
interest, (i) in the case of Interest-bearing Notes, at the rate of interest
applicable to the stated principal amount thereof, unless otherwise specified
in the applicable Indenture Supplement; and (ii) in the case of Discount
Notes, as specified in the applicable Indenture Supplement, and in addition
thereto, will pay such further amount as will be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of (x) the Indenture Trustee, its agents and
counsel and all other amounts due to the Indenture Trustee under Section 7.07
and (y) the Collateral Agent, its agents and counsel and all other amounts due
the Collateral Agent pursuant to the applicable Asset Pool Supplement.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Indenture Trustee may or may instruct the Collateral Agent, in its
own name and as trustee of an express trust, to institute a judicial
proceeding for the collection of the sums so due and unpaid, and may directly
or may instruct the Collateral Agent to prosecute such proceeding to judgment
or final decree, and the Indenture Trustee or the Collateral Agent may enforce
the same against the Issuer or any other obligor upon the Notes of such
Series, Class or Tranche and collect the money adjudged or decreed to be
payable in the manner provided by law out of the Collateral or any other
obligor upon such Notes, wherever situated.
Section 6.04 Indenture Trustee or the Collateral Agent May File
Proofs of Claim. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Issuer or any other obligor upon
the Notes or the property of the Issuer or of such other obligor or their
creditors, the Indenture Trustee (irrespective of whether the principal of the
Notes will then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Collateral Agent will have made any
demand on the Issuer for the payment of overdue principal or interest) will be
entitled and empowered either directly or through instruction to the
Collateral Agent to do the same by intervention in such proceedings or
otherwise:
(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 Indenture Trustee or the
Collateral Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances (x) of the
Indenture Trustee, its agents and counsel and all other amounts due
the Indenture Trustee under Section 7.07 and (y) of the Collateral
Agent, its agents and counsel and all other amounts due the
Collateral Agent pursuant to the applicable Asset Pool Supplement)
and of the Noteholders allowed in such judicial proceeding, and
(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 Collateral Agent or the Indenture
Trustee, as the case may be, and in the event that the Indenture Trustee and
the Collateral Agent will consent to the making of such payments directly to
the Noteholders, to pay (x) to the Indenture Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel, and any other amounts due the
Indenture Trustee under Section 7.07 and (y) to the Collateral Agent any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Collateral Agent, its agents and counsel, and any other
amounts due to the Collateral Agent pursuant to the applicable Asset Pool
Supplement.
Nothing herein contained will be deemed to authorize the Indenture
Trustee or the Collateral Agent to authorize or consent to or accept or adopt
on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Indenture Trustee or the Collateral Agent to vote
in respect of the claim of any Noteholder in any such proceeding.
Section 6.05 Indenture Trustee and the Collateral Agent May
Enforce Claims Without Possession of Notes. All rights of action and claims
under this Indenture or the Notes of any Series, Class or Tranche may be
prosecuted and enforced by the Indenture Trustee or the Collateral Agent, at
the direction of the Indenture Trustee, without the possession of any of the
Notes of such Series, Class or Tranche or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Indenture Trustee or the Collateral Agent, at the direction of the Indenture
Trustee, will be brought in its own name as trustee of an express trust, and
any recovery of judgment will, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and the Collateral Agent and their respective agents and counsel, be
for the ratable benefit of the Holders of the Notes of the Series, Class or
Tranche in respect of which such judgment has been recovered.
Section 6.06 Application of Money Collected. Any money or other
property collected by the Indenture Trustee or the Collateral Agent, at the
direction of the Indenture Trustee, with respect to a Series, Class or Tranche
of Notes pursuant to this Article VI will be applied in the following order,
at the date or dates fixed by the Indenture Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Notes of such Series, Class or Tranche and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
(a) first, to the payment of all amounts due the Indenture Trustee
under Section 7.07(a) and the Collateral Agent, pari passu, under the related
Asset Pool Supplement;
(b) second, to the payment of the amounts then due and unpaid upon
the Notes of that Series, Class or Tranche for principal and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind (but subject to the
allocation provided in the relevant allocation provisions of the related Asset
Pool Supplement and the related Indenture Supplements), according to the
amounts due and payable on such Notes for principal and interest,
respectively; and
(c) third, to pay any Trust Servicing Fees and any other fees or
expenses then owing for that Series, Class or Tranche of Notes; and
(d) fourth, to the Issuer.
Section 6.07 Collateral Agent May Elect to Hold the Collateral
Certificate. Following an acceleration of any Series, Class or Tranche of
Notes, the Collateral Agent may, at the direction of the Indenture Trustee,
elect to continue to hold a Collateral Certificate and apply distributions on
a Collateral Certificate in accordance with the regular distribution
provisions pursuant to the relevant allocation provisions of the related Asset
Pool Supplement, except that principal will be paid on the accelerated Series,
Class or Tranche of Notes to the extent funds are received and allocated to
the accelerated Series, Class or Tranche of Notes, and payment is permitted by
the subordination provisions of the accelerated Series, Class or Tranche of
Notes.
Section 6.08 Sale of Collateral for Accelerated Notes. In the case
of a Series, Class or Tranche of Notes that has been accelerated following an
Event of Default, the Collateral Agent may, at the direction of the Indenture
Trustee, and at the direction of the Holders of more than 662/3% of the
Outstanding Dollar Principal Amount of that Series, Class or Tranche of Notes
will, cause the Issuer to sell Collateral as provided in the related Indenture
Supplement.
Section 6.09 Noteholders Have the Right to Direct the Time, Method
and Place of Conducting Any Proceeding for Any Remedy Available to the
Indenture Trustee or the Collateral Agent. The Holders of more than 662/3% of
the Outstanding Dollar Principal Amount of any accelerated Series, Class or
Tranche of Notes have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee or
the Collateral Agent, or exercising any trust or power conferred on the
Indenture Trustee or on the Collateral Agent. This right may be exercised only
if the direction provided by the Noteholders does not conflict with applicable
law or this Indenture and does not have a substantial likelihood of involving
the Indenture Trustee or the Collateral Agent in personal liability.
Section 6.10 Limitation on Suits. To the fullest extent permitted
by applicable law, no Holder of any Note of any Series, Class or Tranche will
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Indenture Trustee, who shall have forwarded such notice to the Collateral
Agent of a continuing Event of Default with respect to Notes of such Series,
Class or Tranche;
(b) the Holders of more than 25% in Outstanding Dollar Principal
Amount of the Outstanding Notes of such Series, Class or Tranche have made
written request to the Indenture Trustee, who shall have forwarded such
request to the Collateral Agent, to institute proceedings in respect of such
Event of Default in the name of the Collateral Agent under the related Asset
Pool Supplement and on behalf of the Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
for itself and for the benefit of the Collateral Agent, indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) both the Indenture Trustee and the Collateral Agent, on behalf
of the Indenture Trustee, for 60 days after the Indenture Trustee has received
such notice, request and offer of indemnity have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee, on behalf of the Collateral Agent, during such
60 day period by the Majority Holders of such Series, Class or Tranche;
it being understood and intended that no one or more Holders of Notes of such
Series, Class or Tranche will have any right in any manner whatsoever by
virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Notes of such Series,
Class or Tranche, or to obtain or to seek to obtain priority or preference
over any other such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and proportionate
benefit of all the Holders of all Notes of such Series, Class or Tranche.
Section 6.11 Unconditional Right of Noteholders to Receive
Principal and Interest; Limited Recourse. Notwithstanding any other provisions
in this Indenture, the Holder of any Note will have the right, which is
absolute and unconditional, to receive payment of the principal of and
interest on such Note on the Legal Maturity Date expressed in the related
Indenture Supplement and to institute suit for the enforcement of any such
payment, and such right will not be impaired without the consent of such
Holder; provided, however, that notwithstanding any other provision of this
Indenture to the contrary, the obligation to pay principal of or interest on
the Notes or any other amount payable to any Noteholder will be without
recourse to the Transferor, the Indenture Trustee, the Collateral Agent, the
Owner Trustee or any Affiliate, officer, employee or director of any of them,
and the obligation of the Issuer to pay principal of or interest on the Notes
or any other amount payable to any Noteholder will be subject to the
allocation and payment provisions of the applicable Asset Pool Supplements and
the applicable Indenture Supplements and limited to amounts available from the
Collateral pledged to secure the Notes of the applicable Asset Pool.
Section 6.12 Restoration of Rights and Remedies. If the Indenture
Trustee or the Collateral Agent, on behalf of the Indenture Trustee, or any
Noteholder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, then and in every such case the Issuer, the Indenture Trustee, the
Collateral Agent, on behalf of the Indenture Trustee, and the Noteholders
will, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all
rights and remedies of the Indenture Trustee, the Collateral Agent, on behalf
of the Indenture Trustee, and the Noteholders will continue as though no such
proceeding had been instituted.
Section 6.13 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee, the Collateral
Agent, on behalf of the Indenture Trustee, or to the Noteholders is intended
to be exclusive of any other right or remedy, and every right and remedy will,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, will not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.14 Delay or Omission Not Waiver. No delay or omission of
the Indenture Trustee, the Collateral Agent or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default will impair
any such right or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by this Article VI or
by law to the Indenture Trustee, the Collateral Agent, on behalf of the
Indenture Trustee, or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Indenture Trustee, the
Collateral Agent, on behalf of the Indenture Trustee, or by the Noteholders,
as the case may be.
Section 6.15 Control by Noteholders. Holders of more than 662/3%
of the Outstanding Dollar Principal Amount of any affected Series, Class or
Tranche will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee and the
Collateral Agent on behalf of the Indenture Trustee, or exercising any trust
or power conferred on the Indenture Trustee with respect to the Notes of such
Series, Class or Tranche, provided that:
(a) the Indenture Trustee and the Collateral Agent, on behalf of
the Indenture Trustee, will have the right to decline to follow any such
direction if the Indenture Trustee or the Collateral Agent, as the case may
be, being advised by counsel, determines that the Action so directed may not
lawfully be taken or would conflict with this Indenture or if the Indenture
Trustee or the Collateral Agent in good faith will, by a Collateral Agent
Authorized Officer, determine that the proceedings so directed would involve
it in personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
(b) the Indenture Trustee and the Collateral Agent, on behalf of
the Indenture Trustee, may take any other action permitted hereunder deemed
proper by the Indenture Trustee or the Collateral Agent, as the case may be,
which is not inconsistent with such direction.
Section 6.16 Waiver of Past Defaults. Holders of more than 662/3%
of the Outstanding Dollar Principal Amount of any Series, Class or Tranche may
on behalf of the Holders of all the Notes of such Series, Class or Tranche
waive any past default hereunder or under the related Indenture Supplement
with respect to such Series, Class or Tranche and its consequences, except a
default not theretofore cured:
(a) in the payment of the principal of or interest on any Note of
such Series, Class or Tranche, or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder of
each Outstanding Note of such Series, Class or Tranche.
Upon any such waiver, such default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured, for
every purpose of this Indenture; but no such waiver will extend to any
subsequent or other default or impair any right consequent thereon.
Section 6.17 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof will be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee or the Collateral Agent for any action taken or
omitted by it as Indenture Trustee or the Collateral Agent, respectively, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section will not apply to any suit instituted by the Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 25% in Outstanding Dollar Principal Amount of the
Outstanding Notes of any Series, Class or Tranche to which the suit relates,
or to any suit instituted by any Noteholders for the enforcement of the
payment of the principal of or interest on any Note on or after the applicable
Legal Maturity Date expressed in such Note.
Section 6.18 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee or Collateral Agent, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
[END OF ARTICLE VI]
ARTICLE VII
THE INDENTURE TRUSTEE
Section 7.01 Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture with respect
to the Notes of any Series, Class or Tranche, and no implied covenants or
obligations will be read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture Trustee
may, with respect to Notes of any Series, Class or Tranche, conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Indenture
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Indenture Trustee, the Indenture
Trustee will be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture but need not confirm or
investigate the accuracy of any mathematical calculations or other facts
stated therein.
(c) In case an Event of Default with respect to any Series, Class
or Tranche of Notes has occurred and is continuing, the Indenture Trustee will
exercise with respect to the Notes of such Series, Class or Tranche such of
the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a fiduciary would exercise or use
under the circumstances in the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to relieve
the Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this clause (d) will not be construed to limit
the effect of subsection (a) of this Section;
(ii) the Indenture Trustee will not be liable for
any error of judgment made in good faith by an Indenture Trustee
Authorized Officer, unless it will be proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable
with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders
of more than 662/3% of the Outstanding Dollar Principal Amount of any
Series, Class or Tranche relating to the time, method and place of
conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred upon the
Indenture Trustee, under this Indenture with respect to the Notes of
such Series, Class or Tranche; and
(iv) no provision of this Indenture will require
the Indenture Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
will have reasonable grounds for believing that repayment of such
funds or indemnity satisfactory to the Indenture Trustee against such
risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee will be subject to the
provisions of this Section.
Section 7.02 Notice of Defaults. Within 90 days after the occurrence
of any default hereunder with respect to Notes of any Series, Class or
Tranche:
(a) the Indenture Trustee will transmit by mail to all Registered
Noteholders of such Series, Class or Tranche, as their names and addresses
appear in the Note Register, notice of such default hereunder known to the
Indenture Trustee,
(b) the Indenture Trustee will notify all Holders of Bearer Notes of
such Series, Class or Tranche, by publication of notice of such default in an
Authorized Newspaper, or as otherwise provided in the applicable Indenture
Supplement, and
(c) the Indenture Trustee will give prompt written notification
thereof to the Note Rating Agencies, unless such default will have been cured
or waived;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such Series, Class or Tranche, the
Indenture Trustee will be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Indenture Trustee Authorized Officers of the Indenture
Trustee in good faith determine that the withholding of such notice is in the
interests of the Noteholders of such Series, Class or Tranche. For the purpose
of this Section, the term "default," with respect to Notes of any Series,
Class or Tranche, means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Notes of such
Series, Class or Tranche.
Section 7.03 Certain Rights of Indenture Trustee. Except as otherwise
provided in Section 7.01:
(a) the Indenture Trustee may conclusively rely and will be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Indenture
Trustee will deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Indenture Trustee
(unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate;
(c) the Indenture Trustee may consult with counsel of its own
selection and the advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(d) the Indenture Trustee will be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(e) the Indenture Trustee will not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee will determine to
make such further inquiry or investigation, it will be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney;
(f) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Indenture Trustee will not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder; and
(g) the Indenture Trustee will not be responsible for filing any
financing statements or continuation statements in connection with the Notes,
but will cooperate with the Issuer in connection with the filing of such
financing statements or continuation statements.
Section 7.04 Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the
Indenture Trustee assumes no responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes. The Indenture Trustee will not be
accountable for the use or application by the Issuer of Notes or the proceeds
thereof.
Section 7.05 May Hold Notes. The Indenture Trustee, any Paying Agent,
the Note Registrar or any other agent of the Issuer, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to
Sections 7.08 and 7.13, may otherwise deal with the Issuer with the same
rights it would have if it were not Indenture Trustee, Paying Agent, Note
Registrar or such other agent.
Section 7.06 Money Held in Trust. Money held by the Indenture Trustee
in trust hereunder need not be segregated from other funds except to the
extent required by law. The Indenture Trustee will be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Issuer.
Section 7.07 Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity.
(a) The Issuer agrees:
(i) to pay to the Indenture Trustee from time to
time reasonable compensation (or, for so long as Xxxxx Fargo Bank
Minnesota, National Association is the Indenture Trustee, such amount
as has been mutually agreed upon) for all services rendered by it
hereunder (which compensation will not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein,
to reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Indenture Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to
hold it harmless against, any and all loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim or liability (whether asserted by the Issuer, the Servicer, any
Holder or any other Person) in connection with the exercise or
performance of any of its powers or duties hereunder.
The Indenture Trustee will have no recourse to any asset of the Issuer other
than funds available pursuant to Section 6.06 or to any Person other than the
Servicer or the Issuer. Except as specified in Section 6.06, any such payment
to the Indenture Trustee shall be subordinate to payments to be made to
Noteholders.
(b) This Section will survive the termination of this Indenture
and the resignation or replacement of the Indenture Trustee under Section 7.10.
Section 7.08 Disqualification; Conflicting Interests. If the
Indenture Trustee has or will acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Indenture Trustee will, if so required
by the Trust Indenture Act, either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. Nothing herein will prevent the
Indenture Trustee from filing with the Commission the application referred to
in the second to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 7.09 Corporate Indenture Trustee Required; Eligibility.
There will at all times be an Indenture Trustee hereunder with respect to each
Series, Class or Tranche of Notes, which will be either a bank or a
corporation organized and doing business under the laws of the United States
of America or of any state, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority, 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 Indenture Trustee. If at any time the
Indenture Trustee with respect to any Series, Class or Tranche of Notes will
cease to be eligible in accordance with the provisions of this Section, it
will resign immediately in the manner and with the effect hereinafter
specified in this Article VII.
Section 7.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article VII will
become effective until the acceptance of appointment by the successor
Indenture Trustee under Section 7.11.
(b) The Indenture Trustee may resign with respect to any Series,
Class or Tranche of Notes at any time by giving written notice thereof to the
Issuer. If an instrument of acceptance by a successor Indenture Trustee shall
not have been delivered to the Indenture Trustee within 30 days after the
giving of such notice of resignation, the resigning Indenture Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee.
(c) The Indenture Trustee may be removed with respect to any
Series, Class or Tranche of Notes at any time by Action of the Majority
Holders of that Series, Class or Tranche, delivered to the Indenture Trustee
and to the Issuer.
(d) If at any time:
(i) the Indenture Trustee fails to comply with
Section 310(b) of the Trust Indenture Act with respect to any Series,
Class or Tranche of Notes after written request therefor by the
Issuer or by any Noteholder who has been a bona fide Holder of a Note
of that Series, Class or Tranche for at least 6 months, or
(ii) the Indenture Trustee ceases to be eligible
under Section 7.09 with respect to any Series, Class or Tranche of
Notes and fails to resign after written request therefor by the
Issuer or by any such Noteholder, or
(iii) the Indenture Trustee becomes incapable of
acting with respect to any Series, Class or Tranche of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or
insolvent or a receiver of the Indenture Trustee or of its property
is appointed or any public officer takes charge or control of the
Indenture Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, with
respect to the Series, Class or Tranche, or in the case of clause (iv), with
respect to all Series, Classes or Tranches, or (B) subject to Section 6.17,
any Noteholder who has been a bona fide Holder of a Note of such Series, Class
and Tranche for at least 6 months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Indenture Trustee with respect to such Series, Class or Tranche
and the appointment of a successor Indenture Trustee with respect to the
Series, Class or Tranche, or, in the case of clause (iv), with respect to all
Series, Classes and Tranches.
(e) If the Indenture Trustee resigns, is removed or becomes
incapable of acting with respect to any Series, Class or Tranche of Notes, or
if a vacancy shall occur in the office of the Indenture Trustee with respect
to any Series, Class or Tranche of Notes for any cause, the Issuer will
promptly appoint a successor Indenture Trustee for that Series, Class or
Tranche of Notes. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Indenture Trustee
with respect to such Series, Class or Tranche of Notes is appointed by Action
of the Majority Holders of such Series, Class or Tranche delivered to the
Issuer and the retiring Indenture Trustee, the successor Indenture Trustee so
appointed will, forthwith upon its acceptance of such appointment, become the
successor Indenture Trustee with respect to such Series, Class or Tranche and
supersede the successor Indenture Trustee appointed by the Issuer with respect
to such Series, Class or Tranche of Notes. If no successor Indenture Trustee
with respect to such Series, Class or Tranche of Notes shall have been so
appointed by the Issuer or the Noteholders of such Series, Class or Tranche
and accepted appointment in the manner hereinafter provided, any Noteholder
who has been a bona fide Holder of a Note of such Series, Class or Tranche for
at least 6 months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee with respect to such Series, Class or Tranche of
Notes.
(f) The Issuer will give written notice of each resignation and
each removal of the Indenture Trustee with respect to any Series, Class or
Tranche of Notes and each appointment of a successor Indenture Trustee with
respect to any Series, Class or Tranche to each Noteholder as provided in
Section 1.06 and to each Note Rating Agency. To facilitate delivery of such
notice, upon request by the Issuer, the Note Registrar shall provide to the
Issuer a list of the relevant Registered Noteholders. Each notice will include
the name of the successor Indenture Trustee and the address of its principal
Corporate Trust Office.
Section 7.11 Acceptance of Appointment by Successor. Every
successor Indenture Trustee appointed hereunder will execute, acknowledge and
deliver to the Issuer and to the predecessor Indenture Trustee an instrument
accepting such appointment, with a copy to the Note Rating Agencies, and
thereupon the resignation or removal of the predecessor Indenture Trustee will
become effective with respect to any Series, Class or Tranche as to which it
is resigning or being removed as Indenture Trustee, and such successor
Indenture Trustee, without any further act, deed or conveyance, will become
vested with all the rights, powers, trusts and duties of the predecessor
Indenture Trustee with respect to any such Series, Class or Tranche; but, on
request of the Issuer or the successor Indenture Trustee, such predecessor
Indenture Trustee will, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor Indenture
Trustee all the rights, powers and trusts of the predecessor Indenture
Trustee, and will duly assign, transfer and deliver to such successor
Indenture Trustee all property and money held by such predecessor Indenture
Trustee hereunder with respect to all or any such Series, Class or Tranche,
subject nevertheless to its lien, if any, provided for in Section 7.07. Upon
request of any such successor Indenture Trustee, the Issuer will execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Indenture Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Indenture
Trustee with respect to the Notes of one or more (but not all) Series, Classes
or Tranches, the Issuer, the predecessor Indenture Trustee and each successor
Indenture Trustee with respect to the Notes of any applicable Series, Class or
Tranche will execute and deliver an Indenture Supplement which will contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Indenture Trustee
with respect to the Notes of any Series, Class or Tranche as to which the
predecessor Indenture Trustee is not being succeeded will continue to be
vested in the predecessor Indenture Trustee, and will add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, it being understood that nothing herein or in such
Indenture Supplement will constitute such Indenture Trustees co-trustees of
the same trust and that each such Indenture Trustee will be Indenture Trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Indenture Trustee.
No successor Indenture Trustee with respect to any Series, Class
or Tranche of Notes will accept its appointment unless at the time of such
acceptance such successor Indenture Trustee will be qualified and eligible
under this Article VII.
Section 7.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Indenture Trustee, will be the successor
of the Indenture Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article VII, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. The Indenture Trustee shall give prompt written notice of such merger,
conversion, consolidation or succession to the Note Rating Agencies. In case
any Notes shall have been authenticated, but not delivered, by the Indenture
Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Indenture Trustee may adopt such authentication and
deliver the Notes so authenticated with the same effect as if such successor
Indenture Trustee had itself authenticated such Notes.
Section 7.13 Preferential Collection of Claims Against Issuer. If
and when the Indenture Trustee shall be or become a creditor of the Issuer (or
any other obligor upon the Notes), the Indenture Trustee will be subject to
the provisions of Section 311 of the Trust Indenture Act. An Indenture Trustee
who has resigned or been removed will be subject to subsection 311(a) of the
Trust Indenture Act to the extent provided therein.
Section 7.14 Appointment of Authenticating Agent. At any time when
any of the Notes remain Outstanding the Indenture Trustee, with the approval
of the Issuer, may appoint an Authenticating Agent or Agents with respect to
one or more Series, Classes or Tranches of Notes which will be authorized to
act on behalf of the Indenture Trustee to authenticate Notes of such Series,
Classes or Tranches issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.06, and Notes so authenticated
will be entitled to the benefits of this Indenture and will be valid and
obligatory for all purposes as if authenticated by the Indenture Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Notes by the Indenture Trustee or the Indenture Trustee's
Certificate of Authentication, such reference will be deemed to include
authentication and delivery on behalf of the Indenture Trustee by an
Authenticating Agent and a Certificate of Authentication executed on behalf of
the Indenture Trustee by an Authenticating Agent. Each Authenticating Agent
will be acceptable to the Issuer and will at all times be a corporation
organized and doing business under the laws of the United States of America,
any state thereof or the District of Columbia, authorized under such laws to
act as an Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 and, if other than the Issuer itself, subject to
supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent will be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent will cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent will resign
immediately in the manner and with the effect specified in this Section. The
initial Authenticating Agent for the Notes of all Series, Classes and Tranches
will be Xxxxx Fargo Bank Minnesota, National Association.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent will be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, will
continue to be an Authenticating Agent, provided such corporation will be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Indenture Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Indenture Trustee and to the Issuer. The Indenture
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent will cease to be eligible in
accordance with the provisions of this Section, the Indenture Trustee, with
the approval of the Issuer, may appoint a successor Authenticating Agent which
will be acceptable to the Issuer and will give notice to each Noteholder as
provided in Section 1.06. Any successor Authenticating Agent upon acceptance
of its appointment hereunder will become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent will be
appointed unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent
(other than an Authenticating Agent appointed at the request of the Issuer
from time to time) reasonable compensation for its services under this
Section, and the Indenture Trustee will be entitled to be reimbursed for such
payments, subject to the provisions of Section 7.07.
If an appointment with respect to one or more Series, Classes or
Tranches is made pursuant to this Section, the Notes of such Series, Classes
or Tranches may have endorsed thereon, in addition to the Indenture Trustee's
Certificate of Authentication, an alternate Certificate of Authentication in
the following form:
This is one of the Notes of the Series, Classes or Tranches
designated therein referred to in the within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as
Indenture Trustee
By: ________________________
As Authenticating Agent
By:_________________________
Authorized Signatory
Section 7.15 Tax Returns. In the event that the Issuer shall be
required to file tax returns, the Servicer shall prepare or shall cause to be
prepared such tax returns and shall provide such tax returns to the Owner
Trustee or the Beneficiary for signature at least 5 days before such tax
returns are due to be filed. The Issuer, in accordance with the terms of each
Indenture Supplement, shall also prepare or shall cause to be prepared all tax
information required by law to be distributed to Noteholders and shall deliver
such information to the Indenture Trustee at least 5 days prior to the date it
is required by law to be distributed to Noteholders. The Indenture Trustee,
upon written request, will furnish the Servicer with all such information
known to the Indenture Trustee as may be reasonably requested and required in
connection with the preparation of all tax returns of the Issuer, and shall,
upon request, execute such returns. In no event shall the Indenture Trustee or
the Owner Trustee be personally liable for any liabilities, costs or expenses
of the Issuer or any Noteholder arising under any tax law, including without
limitation, federal, state or local income or excise taxes or any other tax
imposed on or measured by income (or any interest or penalty with respect
thereto arising from a failure to comply therewith).
Section 7.16 Representations and Covenants of the Indenture
Trustee. The Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a national banking
association duly organized and validly existing under the laws of the
United States of America;
(ii) The Indenture Trustee has full power and
authority to deliver and perform this Indenture and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Indenture and other documents to which it is a party;
and
(iii) Each of this Indenture and other documents to
which it is a party has been duly executed and delivered by the
Indenture Trustee and constitutes its legal, valid and binding
obligation in accordance with its terms.
Section 7.17 Custody of Collateral Certificates and Collateral.
Unless otherwise specified in the related Asset Pool Supplement, each
Collateral Certificate shall be registered in the name of and shall be
delivered to and held by the applicable Collateral Agent in the State of New
York separate and apart from all other property held by such Collateral Agent.
The Collateral Agent shall hold such of the Collateral as constitutes a
Permitted Investment and all other Collateral in accordance with the related
Asset Pool Supplement.
Section 7.18 Indenture Trustee's Application for Instructions from
the Issuer. Any application by the Indenture Trustee for written instructions
from the Issuer may, at the option of the Indenture Trustee, set forth in
writing any action proposed to be taken or omitted by the Indenture Trustee
under and in accordance with this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective, provided that
such application shall make specific reference to this Section 7.18. The
Indenture Trustee shall not be liable for any action taken by, or omission of,
the Indenture Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date
shall not be less than 5 Business Days after the date any officer of the
Issuer actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Indenture
Trustee shall have received written instructions in response to such
application specifying the action be taken or omitted.
[END OF ARTICLE VII]
ARTICLE VIII
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE
TRUSTEE, ISSUER AND BENEFICIARY
Section 8.01 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer will furnish or cause to be furnished to
the Indenture Trustee:
(a) not more than 15 days after each Record Date, in such form as
the Indenture Trustee may reasonably require, a list of the names and
addresses of the Registered Noteholders of such Series, Classes or Tranches as
of such date, and
(b) at such other times as the Indenture Trustee may request in
writing, within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days before the
time such list is furnished;
provided, however, that so long as the Indenture Trustee is the Note
Registrar, no such list shall be required to be furnished.
Section 8.02 Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee will preserve, in as current a form as
is reasonably practicable, the names and addresses of Registered Noteholders
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 8.01 and the names and addresses of Registered Noteholders
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in Section
8.01 upon receipt of a new list so furnished.
(b) If 3 or more Holders of Notes of any Series, Class or Tranche
(hereinafter referred to as "applicants") (or, if there are less than 3 such
Holders, all of the Holders) apply in writing to the Indenture Trustee, and
furnish to the Indenture Trustee reasonable proof that each such applicant has
owned a Note of such Series, Class or Tranche for a period of at least 6
months preceding the date of such application, and such application states
that the applicants desire to communicate with other Holders of Notes of such
Series, Class or Tranche or with the Holders of all Notes with respect to
their rights under this Indenture or under such Notes and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Indenture Trustee will, within 5 Business Days after the
receipt of such application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the Indenture Trustee in
accordance with subsection 8.02(a), or
(ii) inform such applicants as to the approximate
number of Holders of Notes of such Series, Class or Tranche or all
Notes, as the case may be, whose names and addresses appear in the
information preserved at the time by the Indenture Trustee in
accordance with subsection 8.02(a), and as to the approximate cost of
mailing to such Noteholders the form of proxy or other communication,
if any, specified in such application.
If the Indenture Trustee shall elect not to afford such applicants
access to such information, the Indenture Trustee shall, upon the written
request of such applicants, mail to each Holder of a Registered Note of such
Series, Class or Tranche or to all Registered Noteholders, as the case may be,
whose names and addresses appear in the information preserved at the time by
the Indenture Trustee in accordance with subsection 8.02(a), a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Indenture Trustee of the material
to be mailed and of payment, or provision for the payment, of the reasonable
expenses of mailing, unless, within 5 days after such tender, the Indenture
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Indenture Trustee, such mailing would be contrary
to the best interests of the Holders of Notes of such Series, Class or Tranche
or all Noteholders, as the case may be, or would be in violation of applicable
law. Such written statement will specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Indenture Trustee will mail copies of such
material to all Registered Noteholders of such Series, Class or Tranche or all
Registered Noteholders, as the case may be, with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the
Indenture Trustee will be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Issuer and the Indenture Trustee that neither the Issuer nor
the Indenture Trustee will be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders of Notes in
accordance with subsection 8.02(b), regardless of the source from which such
information was derived, and that the Indenture Trustee will not be held
accountable by reason of mailing any material pursuant to a request made under
subsection 8.02(b).
Section 8.03 Reports by Indenture Trustee.
(a) The term "reporting date" as used in this Section means
December 31. Within 60 days after the reporting date in each year, beginning
in 2003, the Indenture Trustee will transmit to Noteholders, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such reporting date if required by Section 313(a) of the
Trust Indenture Act.
(b) To the extent required by the Trust Indenture Act, the
Indenture Trustee will mail each year to all Registered Noteholders, with a
copy to the Note Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue
as trustee under this Indenture;
(ii) any amounts advanced by the Indenture Trustee
under this Indenture;
(iii) the amount, interest rate and maturity date
or indebtedness owing by the Issuer to each of the Indenture Trustee
and the Collateral Agent, each in its individual capacity;
(iv) the property and funds physically held by the
related Collateral Agent as Collateral Agent of the Asset Pool by
which such Notes are secured;
(v) any release or release and substitution of
Collateral subject to the lien of the related Asset Pool Supplement
which has not previously been reported; and
(vi) any action taken by the Indenture Trustee or
the Collateral Agent, on behalf of the Indenture Trustee, that
materially affects the Notes and that has not previously been
reported.
(c) The Indenture Trustee will comply with subsections 313(b) and
313(c) of the Trust Indenture Act.
(d) A copy of each such report will, at the time of such
transmission to Noteholders, be filed by the Indenture Trustee with each stock
exchange upon which the Notes are listed, and also with the Commission. The
Issuer will notify the Indenture Trustee when the Notes are admitted to
trading on any stock exchange.
Section 8.04 Meetings of Noteholders; Amendments and Waivers.
(a) If Notes of a Series, Class or Tranche are issuable in whole
or in part as Bearer Notes, a meeting of Noteholders of the Notes of such
Series, Class or Tranche may be called at any time and from time to time
pursuant to this Section 8.04 to make, give or take any Action provided by
this Indenture or any Indenture Supplement to be made, given or taken by
Noteholders of such Series, Class or Tranche.
(b) The Indenture Trustee may call a meeting of the Noteholders of
any Series, Class or Tranche issuable in whole or in part as Bearer Notes at
any time for any purpose specified in this Indenture or any Indenture
Supplement. The Indenture Trustee will call a meeting upon request of the
Issuer or the Holders of at least 10% in aggregate Outstanding Dollar
Principal Amount of the Outstanding Notes of such Series, Class or Tranche
issuable in whole or in part as Bearer Notes. In any case, a meeting will be
called after notice is given to such Noteholders pursuant to Section 1.06.
(c) To be entitled to vote at any meeting of Noteholders of any
Series, Class or Tranche, a Person shall be (1) a Holder of one or more
Outstanding Notes of such Series, Class or Tranche, or (2) a Person appointed
by an instrument in writing as proxy for the Noteholder or Noteholders of one
or more Outstanding Notes of such Series, Class or Tranche by the Noteholder
or Noteholders. The only Person who shall be entitled to be present or to
speak at any meeting of Noteholders of any Series, Class or Tranche shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Indenture Trustee and its counsel and any
representatives of the Issuer and its counsel.
(d) Except for any consent that must be given by the Holders of
each Outstanding Note affected or any action to be taken by the Issuer as
holder of any Collateral Certificate, any resolution presented at any meeting
at which a quorum is present may be adopted by the affirmative vote of the
Holders of more than 662/3% of the Outstanding Dollar Principal Amount of that
Series, Class or Tranche, as the case may be. However, any resolution with
respect to any Action which may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of
Outstanding Notes of a Series, Class or Tranche of Bearer Notes may be adopted
at any meeting at which a quorum is present only by the affirmative vote of
the Holders of not less than the specified percentage in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of such Series, Class or
Tranche. Any resolution passed or decision taken at any meeting of Noteholders
duly held in accordance with this Indenture will be binding on all Noteholders
of the affected Series, Class or Tranche.
(e) The quorum at any meeting will be persons holding or
representing the Holders of more than 662/3% of the Outstanding Dollar
Principal Amount of a Series, Class or Tranche or all Notes, as the case may
be; provided, however, that if any action is to be taken at that meeting
concerning an Action that may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of a Series, Class or Tranche, the persons holding or
representing such specified percentage in aggregate Outstanding Dollar
Principal Amount of the Outstanding Notes of such Series, Class or Tranche or
all Notes will constitute a quorum.
(f) The ownership of Bearer Notes will be proved as provided in
subsection 1.04(c)(ii).
(g) The Issuer may make reasonable rules for other matters
relating to Action by or a meeting of Noteholders not otherwise covered by
this Section, including but not limited to the location or locations for such
meeting, the manner of voting at such meeting, the appointment and duties of
inspectors of the vote, the submission and examination of proxies,
certificates and other evidence of the right to vote and the appointment of a
chairperson for the meeting.
(h) As set forth in the applicable Pooling and Servicing Agreement
and the related Series Supplement, with respect to certain actions requiring
the consent or direction of Investor Certificateholders holding a specified
percentage of the aggregate unpaid amount outstanding of Investor Certificates
(whether by number of Series or percentage of all outstanding Investor
Certificates depending on the manner of voting or consenting on such matter),
including consenting to certain amendments and terminating the related Master
Trust, the Issuer, as holder of any Collateral Certificate, will be deemed to
have voted in accordance with the Investor Certificateholders holding a
majority of the aggregate Invested Amount outstanding of such Investor
Certificates which are entitled to vote or consent on such matter; provided,
however, that in the event Investor Certificateholders holding equal portions
of the Invested Amount of such Investor Certificates vote in the positive and
in the negative, without taking into consideration the vote of the Issuer, as
holder of such Collateral Certificate, the Issuer shall be deemed to vote in
the negative; provided further, that if the Collateral Certificate is the sole
Investor Certificate outstanding which is entitled to vote or consent on such
matter, the Issuer, as holder thereof, will be deemed to have voted in the
negative.
Section 8.05 Reports by Issuer to the Commission. The Issuer will:
(a) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act; or, if the Issuer is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with the
Indenture Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Registered Noteholders, as their names
and addresses appear in the Note Register, and notify all Holders of Bearer
Notes of such Series, Class or Tranche, by publication of such notice in an
Authorized Newspaper or as otherwise provided in the applicable Indenture
Supplement, within 30 days after the filing thereof with the Indenture
Trustee, such summaries of any information, documents and reports required to
be filed by the Issuer pursuant to paragraphs (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the
Commission.
Section 8.06 Monthly Noteholders' Statement. On each Determination
Date the Issuer will, in cooperation with the Servicer of the Master Trust and
the Servicer under the Transfer and Servicing Agreement, complete and deliver
to the Indenture Trustee and the Master Trust Trustee (with a copy to each
Note Rating Agency), a Monthly Noteholders' Statement.
On each Payment Date, the Indenture Trustee shall make the Monthly
Noteholder's Statement available electronically and, with the consent or at
the direction of the Issuer, such other information regarding the Notes and/or
the Collateral as the Indenture Trustee may have in its possession, but only
with the use of a password provided by the Indenture Trustee or its agent to
such Person upon receipt by the Indenture Trustee from such Person of a
certification in a form acceptable to the Indenture Trustee; provided,
however, that the Indenture Trustee or its agent shall provide such password
to the parties to this Indenture and each Rating Agency without requiring such
certification; provided, further, however, that the Indenture Trustee shall
have no obligation to provide such information described in this Section 8.06
until it has received the requisite information from the Issuer or the
Servicer, as applicable. The Indenture Trustee will make no representation or
warranty as to the accuracy or completeness of such documents and will assume
no responsibility therefor.
The Indenture Trustee's internet website shall be initially
located at "xxx.XXXXxx.xxx" or at such other address as shall be specified by
the Indenture Trustee from time to time in writing to each Note Rating Agency,
each Noteholder and the parties to this Indenture and to the Transfer and
Servicing Agreement. In connection with providing access to the Indenture
Trustee's website, the Indenture Trustee may require registration and the
acceptance of a disclaimer. Other than as set forth in Section 7.01 hereof,
the Indenture Trustee shall not be liable for the electronic dissemination of
information as contemplated by this Section.
Section 8.07 Payment Instruction to Master Trust.
(a) Promptly after the receipt by the Issuer of each Monthly
Servicer's Certificate under the applicable Series Supplement, the Issuer
will, in cooperation with the Servicer, complete the Payment Instruction and
deliver a copy thereof to the Indenture Trustee and the Master Trust Trustee.
(b) From time to time, the Issuer will notify the Servicer of the
information necessary to be provided by the Issuer under the applicable
section of the applicable Pooling and Servicing Agreement as supplemented by
any Series Supplement to calculate the Invested Amount of the Collateral
Certificate issued under that Pooling and Servicing Agreement.
[END OF ARTICLE VIII]
ARTICLE IX
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING
AND SERVICING AGREEMENT AND AMENDMENTS TO THE
TRUST AGREEMENT
Section 9.01 Supplemental Indentures and Amendments Without
Consent of Noteholders. Without the consent of the Holders of any Notes but
with prior notice to each Note Rating Agency, the Collateral Agent and the
Indenture Trustee, at any time and from time to time, upon delivery by the
Issuer to the Indenture Trustee and the Collateral Agent of an Officer's
Certificate to the effect that the Issuer reasonably believes that such
amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future, and, with respect to
subsections (a), (b), (d), (f) through (j) and (l) through (n) of this Section
9.01, upon delivery of an Issuer Tax Opinion, the Issuer may amend this
Indenture, including any Asset Pool Supplement, any Indenture Supplement or
enter into one or more Asset Pool Supplements or Indenture Supplements, in
form satisfactory to the Indenture Trustee and the Collateral Agent, for any
of the following purposes:
(a) to evidence the succession of another Entity to the Issuer,
and the assumption by any such successor of the covenants of the Issuer herein
and in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender any
right or power herein conferred upon the Issuer by the Issuer, for the benefit
of the Holders of the Notes of any or all Series, Classes or Tranches (and if
such covenants or the surrender of such right or power are to be for the
benefit of less than all Series, Classes or Tranches of Notes, stating that
such covenants are expressly being included or such surrenders are expressly
being made solely for the benefit of one or more specified Series, Classes or
Tranches); or
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture; or
(d) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this Indenture was executed or any corresponding
provision in any similar federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article II, and
to provide for the issuance of any Series, Class or Tranche of Notes as
provided in Article III and to set forth the terms thereof, and/or to add to
the rights of the Holders of the Notes of any Series, Class or Tranche; or
(f) to evidence and provide for the acceptance of appointment by
another corporation as a successor Indenture Trustee hereunder with respect to
one or more Series, Classes or Tranches of Notes and to add to or change any
of the provisions of this Indenture as will be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, pursuant to Section 7.11; or
(g) to evidence and provide for the acceptance of appointment by
another corporation as a successor Collateral Agent under the applicable Asset
Pool Supplement with respect to the relevant Asset Pool and to add to or
change any of the provisions of such Asset Pool Supplement as will be
necessary to provide for or facilitate the administration of the trusts under
such Asset Pool Supplement by more than one Collateral Agent, to the extent
provided for in such Asset Pool Supplement; or
(h) to add any additional Early Amortization Events or Events of
Default in respect of the Notes of any or all Series, Classes or Tranches (and
if such additional Events of Default are to be in respect of less than all
Series, Classes or Tranches of Notes, stating that such Events of Default are
expressly being included solely for the benefit of one or more specified
Series, Classes or Tranches of Notes); or
(i) to provide for the consolidation of any Master Trust and the
Issuer into a single Entity or the transfer of assets in such Master Trust to
the Issuer after the termination of all Series of Investor Certificates (other
than the related Collateral Certificate or Certificates); or
(j) if one or more additional Transferors under the Transfer and
Servicing Agreement or any Pooling and Servicing Agreement are added to, or
replaced under, the Transfer and Servicing Agreement or any such Pooling and
Servicing Agreement, or one or more additional Beneficiaries under the Trust
Agreement are added to, or replaced under, the Trust Agreement, to make any
necessary changes to the Indenture or any other related document; or
(k) to establish an Asset Pool and to set forth the terms thereof,
including the designation of Collateral thereto, and/or to add to the rights
of the Holders of Notes of any Series, Class or Tranche secured by an Asset
Pool; or
(l) to provide for additional or alternative forms of credit
enhancement for any Tranche of Notes; or
(m) to comply with any regulatory, accounting or tax laws; or
(n) to qualify for sale treatment under generally accepted
accounting principles.
Additionally, notwithstanding any provision of this Article IX to
the contrary and in addition to (a) through (n) above, this Indenture,
including any Indenture Supplement or any Asset Pool Supplement, may also be
amended without the consent of the Indenture Trustee, the Collateral Agent or
any of the Noteholders, upon delivery of an Issuer Tax Opinion for the purpose
of adding any provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture, any Indenture Supplement or any Asset Pool
Supplement or of modifying in any manner the rights of the Holders of the
Notes under this Indenture, any Indenture Supplement or any Asset Pool
Supplement; provided, however, that (i) the Issuer shall deliver to the
Indenture Trustee, the Collateral Agent and the Owner Trustee an Officer's
Certificate to the effect that the Issuer reasonably believes that such
amendment will not have an Adverse Effect and is not reasonably expected to
have an Adverse Effect at any time in the future and that such amendment does
not adversely affect the rights, duties, benefits, protections, privileges or
immunities of the Indenture Trustee or the applicable Collateral Agent and
(ii) each Note Rating Agency confirms in writing that such amendment will not
cause a Ratings Effect.
Section 9.02 Supplemental Indentures with Consent of Noteholders.
In addition to any amendment permitted pursuant to Section 9.01 hereof, with
prior notice to each applicable Note Rating Agency and the consent of Holders
of more than 662/3% in Outstanding Dollar Principal Amount of each Series,
Class or Tranche of Notes affected by such amendment of this Indenture,
including any Asset Pool Supplement and any Indenture Supplement, by Act of
said Holders delivered to the Issuer, the Collateral Agent and the Indenture
Trustee, the Issuer, the Collateral Agent and the Indenture Trustee, as
applicable, upon delivery of an Issuer Tax Opinion, may enter into an
amendment of this Indenture for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes of each
such Series, Class or Tranche under this Indenture or any Indenture
Supplement; provided, however, that no such amendment of an Indenture
Supplement will, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) change the scheduled payment date of any payment of interest
on any Note, or change a Scheduled Principal Payment Date or Legal Maturity
Date of any Note;
(b) reduce the Stated Principal Amount of, or the interest rate on
any Note, or change the method of computing the Outstanding Dollar Principal
Amount, the Adjusted Outstanding Dollar Principal Amount or the Nominal
Liquidation Amount in a manner that is adverse to the Holder of any Note;
(c) reduce the amount of a Discount Note payable upon the
occurrence of an Early Amortization Event or other optional or mandatory
redemption or upon the acceleration of its legal maturity date;
(d) impair the right to institute suit for the enforcement of any
payment on any Note;
(e) reduce the percentage in Outstanding Dollar Principal Amount
of the Outstanding Notes of any Series, Class or Tranche of Notes, the consent
of whose Holders is required for any such Indenture Supplement, or the consent
of whose Holders is required for any waiver of compliance with the provisions
of this Indenture or of defaults hereunder and their consequences, provided
for in this Indenture;
(f) modify any of the provisions of this Section or Section 6.18,
except to increase any percentage of Holders required to consent to any such
amendment or to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(g) permit the creation of any lien or other encumbrance on the
Collateral of any Asset Pool that secures any Tranche of Notes that is prior
to the lien in favor of the Holders of the Notes of such Tranche;
(h) change any Place of Payment where any principal of, or
interest on, any Note is payable, unless otherwise provided in the applicable
Indenture Supplement;
(i) change the method of computing the amount of principal of, or
interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 9.01.
An amendment of this Indenture or an Indenture Supplement which
changes or eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more particular
Series, Class or Tranche of Notes, or which modifies the rights of the Holders
of Notes of such Series, Class or Tranche with respect to such covenant or
other provision, will be deemed not to affect the rights under this Indenture
of the Holders of Notes of any other Series, Class or Tranche.
It will not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment or Indenture
Supplement, but it will be sufficient if such Act will approve the substance
thereof.
Section 9.03 Execution of Amendments and Indenture Supplements. In
executing or accepting the additional trusts created by any amendment of this
Indenture or Indenture Supplement permitted by this Article IX or the
modifications thereby of the trusts created by this Indenture, the Indenture
Trustee or the Collateral Agent, on behalf of the Indenture Trustee, will be
entitled to receive, and (subject to Section 7.01 or the applicable provisions
of the related Asset Pool Supplement) will be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such amendment or
Indenture Supplement is authorized or permitted by this Indenture and that all
conditions precedent thereto have been satisfied. The Indenture Trustee or the
Collateral Agent, on behalf of the Indenture Trustee, may, but will not
(except to the extent required in the case of an amendment or Indenture
Supplement entered into under subsection 9.01(d) or 9.01(f)) be obligated to,
enter into any such amendment or Indenture Supplement which affects the
Indenture Trustee's or the Collateral Agent's own rights, duties or immunities
under this Indenture or otherwise.
Section 9.04 Effect of Amendments and Indenture Supplements. Upon
the execution of any amendment of this Indenture or Indenture Supplement under
this Article IX, this Indenture will be modified in accordance therewith with
respect to each Series, Class or Tranche of Notes affected thereby, or all
Notes, as the case may be, and such amendment or Indenture Supplement will
form a part of this Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered hereunder will be bound
thereby to the extent provided therein.
Section 9.05 Conformity with Trust Indenture Act. Every amendment
of this Indenture or Indenture Supplement executed pursuant to this Article IX
will conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Notes to Indenture Supplements. Notes
authenticated and delivered after the execution of any amendment of this
Indenture or Indenture Supplement pursuant to this Article IX may, and will if
required by the Indenture Trustee, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such amendment or Indenture
Supplement. If the Issuer will so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Issuer, to any such
amendment or Indenture Supplement may be prepared and executed by the Issuer
and authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
Section 9.07 Amendments to the Pooling and Servicing Agreement. By
their acceptance of a Note, the Noteholders acknowledge that the Transferor
and the Master Trust Trustee may amend the applicable Pooling and Servicing
Agreement and any supplement thereto without the consent of the Holders of any
Investor Certificates (including the Issuer) or any Noteholder, so long as
such amendment or supplement would not materially adversely affect the
interest of the Holders of any Investor Certificates.
For purposes of any vote or consent under a Pooling and Servicing
Agreement or any supplement thereto, with respect to certain actions requiring
the consent or direction of Investor Certificateholders holding a specified
percentage of the aggregate unpaid amount outstanding of Investor Certificates
(whether by number of Series or percentage of all outstanding Investor
Certificates depending on the manner of voting or consenting on such matter),
the Issuer, as holder of the Collateral Certificate, shall be deemed to be an
Investor Certificateholder under such Pooling and Servicing Agreement, and
will be deemed to have voted in accordance with the Investor
Certificateholders holding a majority of the aggregate Invested Amount
outstanding of such Investor Certificates which are entitled to vote or
consent on such matter; provided, however, that in the event Investor
Certificateholders holding equal portions of the Invested Amount outstanding
of such Investor Certificates vote in the positive and in the negative,
without taking into consideration the vote of the Issuer, as holder of such
Collateral Certificate, the Issuer shall be deemed to vote in the negative;
provided further, that if the Collateral Certificate is the sole Investor
Certificate outstanding entitled to vote or consent on such matter, the
Issuer, as holder thereof, will be deemed to have voted in the negative.
Section 9.08 Amendments to the Trust Agreement.
(a) Subject to the provisions of the Trust Agreement, without the
consent of the Holders of any Notes or the Indenture Trustee, the Owner
Trustee (at the written direction of the Beneficiary) and the Beneficiary may
amend the Trust Agreement so long as such amendment will not have an Adverse
Effect and is not reasonably expected to have an Adverse Effect at any time in
the future.
(b) Subject to the provisions of the Trust Agreement, (A) in the
case of a significant change in the permitted activities of the Issuer which
is not materially adverse to the Holders of the Notes, with the consent of the
Majority Holders of each Class or Tranche of Notes affected by such change,
and (B) in all other cases, with the consent of the Holders of more than
662/3% in Outstanding Dollar Principal Amount of the Outstanding Notes
affected by such amendment, by action of said Holders delivered to First USA
and the Owner Trustee (at the written direction of the Beneficiary), the
Beneficiary may amend the Trust Agreement for the purpose of adding, changing
or eliminating any provisions of the Trust Agreement or of modifying the
rights of those Noteholders.
[END OF ARTICLE IX]
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 10.01 Payment of Principal and Interest. With respect to
each Series, Class or Tranche of Notes, the Issuer will duly and punctually
pay the principal of and interest on such Notes in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in this Indenture for the benefit of, the
Notes of such Series, Class or Tranche.
Section 10.02 Maintenance of Office or Agency. The Issuer will
maintain an office or agency in each Place of Payment where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of such office or agency. If at any time the Issuer
will fail to maintain such office or agency or will fail to furnish the
Indenture Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee its
agent to receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies where the Notes of one or more Series, Classes or Tranches
may be presented or surrendered for any or all of such purposes specified
above and may constitute and appoint one or more Paying Agents for the
payments of such Notes, in one or more other cities, and may from time to time
rescind such designations and appointments; provided, however, that no such
designation, appointment or rescission shall in any matter relieve the Issuer
of its obligations to maintain an office or agency in each Place of Payment
for Notes of any Series, Class or Tranche for such purposes. The Issuer will
give prompt written notice to the Indenture Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency. Unless and until the Issuer rescinds one or more of such appointments,
the Issuer hereby appoints the Indenture Trustee, at its principal office, as
its Paying Agent in Minneapolis, Minnesota with respect to all Series, Classes
and Tranches of Notes having a Place of Payment in the City of Minneapolis,
Minnesota.
Section 10.03 Money for Note Payments to be Held in Trust. The
Paying Agent, on behalf of the Indenture Trustee, will make distributions to
Noteholders from the Collection Account of the applicable Asset Pool or other
applicable Bank Account pursuant to the provisions of any Asset Pool
Supplement or any Indenture Supplement and will report the amounts of such
distributions to the Indenture Trustee. Any Paying Agent will have the
revocable power to withdraw funds from the Collection Account of the
applicable Asset Pool or other applicable Bank Account for the purpose of
making the distributions referred to above. The Indenture Trustee may revoke
such power and remove the Paying Agent if the Indenture Trustee determines in
its sole discretion that the Paying Agent has failed to perform its
obligations under this Indenture or any Indenture Supplement in any material
respect. The Paying Agent upon removal will return all funds in its possession
to the Indenture Trustee.
The Issuer will cause each Paying Agent (other than the Indenture
Trustee) for any Series, Class or Tranche of Notes to execute and deliver to
the Indenture Trustee an instrument in which such Paying Agent will agree with
the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it
so agrees), subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such Series, Class or Tranche in trust for the benefit of
the Persons entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee, give the
Indenture Trustee notice of any default by the Issuer (or any other obligor
upon the Notes of such Series, Class or Tranche) in the making of any such
payment of principal or interest on the Notes of such Series, Class or
Tranche;
(c) if such Paying Agent is not the Indenture Trustee, at any time
during the continuance of any such default, upon the written request of the
Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if such Paying Agent
is not the Indenture Trustee, forthwith pay to the Indenture Trustee all sums
held by it in trust for the payment of Notes if at any time it ceases to meet
the standards described in this Section required to be met by a Paying Agent
at the time of its appointment; and
(e) comply with all requirements of the Internal Revenue Code or
any other applicable tax law with respect to the withholding from any payments
made by it on any Notes of any applicable withholding taxes imposed thereon
and with respect to any applicable reporting requirements in connection
therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any Series, Class
or Tranche of Notes or for any other purpose, pay, or by an Officer's
Certificate direct any Paying Agent to pay, to the Indenture Trustee all sums
held in trust by the Issuer or such Paying Agent in respect of each and every
Series, Class or Tranche of Notes as to which it seeks to discharge this
Indenture or, if for any other purpose, all sums so held in trust by the
Issuer in respect of all Notes, such sums to be held by the Indenture Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent will be released from all further liability with
respect to such money.
Any money deposited with the Indenture Trustee or any Paying
Agent, or then held by the Issuer, in trust for the payment of the principal
of or interest on any Note of any Series, Class or Tranche and remaining
unclaimed for two years after such principal or interest has become due and
payable will be paid to the Issuer upon request in an Officer's Certificate,
or (if then held by the Issuer) will be discharged from such trust; and the
Holder of such Note will thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof, and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer as trustee thereof, will thereupon cease. The
Indenture Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuer give to the Holders of the Notes
as to which the money to be repaid was held in trust, as provided in Section
1.06, a notice that such funds remain unclaimed and that, after a date
specified in the notice, which will not be less than 30 days from the date on
which the notice was first mailed or published to the Holders of the Notes as
to which the money to be repaid was held in trust, any unclaimed balance of
such funds then remaining will be paid to the Issuer free of the trust
formerly impressed upon it.
Each Paying Agent will at all times have a combined capital and
surplus of at least $50,000,000 and be subject to supervision or examination
by a United States federal or state authority or be regulated by or subject to
the supervision or examination of a governmental authority of a nation that is
member of the Organization for Economic Co-operation and Development. If such
Paying Agent publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such Paying Agent will be deemed to be its combined capital and surplus as set
forth in its most recent report of condition as so published.
Section 10.04 Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee and the Note Rating Agencies, on or before April 30
of each year, beginning in 2003, a written statement signed by an Issuer
Authorized Officer stating that:
(a) a review of the activities of the Issuer during the prior year
and of the Issuer's performance under this Indenture and under the terms of
the Notes has been made under such Issuer Authorized Officer's supervision;
and
(b) to the best of such Issuer Authorized Officer's knowledge,
based on such review, the Issuer has complied in all material respects with
all conditions and covenants under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such condition or covenant
(without regard to any grace period or requirement of notice), specifying each
such default known to such Issuer Authorized Officer and the nature and status
thereof.
Section 10.05 Legal Existence. The Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its
legal existence.
Section 10.06 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
Section 10.07 Compliance with Laws. The Issuer will comply with
the requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability
of the Issuer to perform its obligations under the Notes or this Indenture.
Section 10.08 Notice of Events of Default. The Issuer agrees to
give the Indenture Trustee and the Note Rating Agencies prompt written notice
of each Event of Default hereunder and each breach on the part of the Master
Trust or the Transferor of its respective obligations under the Pooling and
Servicing Agreement and any default of a Derivative Counterparty.
Section 10.09 Certain Negative Covenants. The Issuer will not:
(a) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes (other than amounts withheld in
good faith from such payments under the Internal Revenue Code or other
applicable tax law including foreign withholding);
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Indenture Trustee, the Collateral
Agent and the Noteholders created by this Indenture and the applicable Asset
Pool Supplement to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be
expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the Indenture
Trustee, the Collateral Agent and the Noteholders created by this Indenture)
to be created on or extend to or otherwise arise upon or burden the Collateral
designated for inclusion in an Asset Pool or any part thereof or any interest
therein or the proceeds thereof;
(d) permit the lien in favor of the Indenture Trustee, the
Collateral Agent and the Noteholders created by this Indenture and the
applicable Asset Pool Supplement not to constitute a valid first priority
security interest in the Collateral designated for inclusion in an Asset Pool;
or
(e) voluntarily dissolve or liquidate.
Section 10.10 No Other Business. The Issuer will not engage in any
business other than as permitted under the Trust Agreement.
Section 10.11 Rule 144A Information. For so long as any of the
Notes of any Series, Class or Tranche are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Exchange Act, the Issuer agrees
to provide to any Noteholder of such Series, Class or Tranche and to any
prospective purchaser of Notes designated by such Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such Holder or prospective purchaser to satisfy the conditions set
forth in Rule 144A(d)(4) under the Securities Exchange Act.
Section 10.12 Performance of Obligations; Servicing of
Receivables.
(a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Collateral or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or agreement,
except as expressly provided in this Indenture, the Trust Agreement, the
Transfer and Servicing Agreement, the applicable Pooling and Servicing
Agreement or such other instrument or agreement.
(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, any Indenture
Supplement, the Trust Agreement and in the instruments and agreements
(including but not limited to, the applicable Pooling and Servicing Agreement)
relating to the Collateral designated for inclusion in each Asset Pool,
including but not limited to filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of
this Indenture and the Trust Agreement in accordance with and within the time
periods provided for herein and therein. Except as otherwise expressly
provided herein or therein, the Issuer shall not waive, amend, modify,
supplement or terminate this Indenture, any Indenture Supplement or the Trust
Agreement or any provision thereof without the consent of the Majority Holders
of the Notes of each adversely affected Series, Class or Tranche of Notes.
Section 10.13 Issuer May Consolidate, Etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any
other Person, unless:
(1) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger (i) shall be a Person
organized and existing under the laws of the United States of America
or any state or the District of Columbia, (ii) shall not be subject
to regulation as an "investment company" under the Investment Company
Act and (iii) shall expressly assume, by an Indenture Supplement,
executed and delivered to the Indenture Trustee, in a form
satisfactory to the Indenture Trustee, the due and punctual payment
of the principal of and interest on all Notes and the performance of
every covenant of this Indenture on the part of the Issuer to be
performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default or Early Amortization Event shall
have occurred and be continuing;
(3) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that (i) such consolidation or merger and such Indenture
Supplement comply with this Section 10.13, (ii) all conditions
precedent in this Section 10.13 relating to such transaction have
been complied with (including any filing required by the Securities
Exchange Act), and (iii) such Indenture Supplement is duly
authorized, executed and delivered and is valid, binding and
enforceable against such Person;
(4) the Issuer shall have received written
confirmation from each Note Rating Agency that there will be no
Ratings Effect with respect to any Outstanding Notes as a result of
such consolidation or merger;
(5) the Issuer shall have received (and shall have
delivered copies thereof to the Indenture Trustee) an Issuer Tax
Opinion and a Master Trust Tax Opinion;
(6) any action that is necessary to maintain the
lien and security interest created by this Indenture shall have been
taken; and
(7) such action shall not be contrary to the status
of the Issuer as a qualified special purpose entity under existing
accounting literature.
(b) The Issuer shall not convey or transfer any of its properties
or assets, including those included in the Collateral, substantially as an
entirety to any Person, unless:
(1) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the conveyance or
transfer of which is hereby restricted shall (A) be a United States
citizen or a Person organized and existing under the laws of the
United States of America or any state, or the District of Columbia,
(B) expressly assume, by an Indenture Supplement, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree
by means of such Indenture Supplement that all right, title and
interest so conveyed or transferred shall be subject and subordinate
to the rights of Holders of the Notes, (D) expressly agree by means
of such Indenture Supplement that such Person (or if a group of
Persons, then one specified Person) shall make all filings with the
Commission (and any other appropriate Person) required by the
Securities Exchange Act in connection with the Notes and (E) not be
an "investment company" as defined in the Investment Company Act;
(2) immediately after giving effect to such
transaction, no Event of Default or Early Amortization Event shall
have occurred and be continuing;
(3) the Issuer shall have received written
confirmation from each Note Rating Agency that there will be no
Ratings Effect with respect to any Outstanding Notes as a result of
such conveyance or transfer;
(4) the Issuer shall have received (and shall have
delivered copies thereof to the Indenture Trustee) an Issuer Tax
Opinion and a Master Trust Tax Opinion;
(5) any action that is necessary to maintain the
lien and security interest created by this Indenture shall have been
taken; and
(6) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such Indenture
Supplement comply with this Section 10.13 and that all conditions
precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Securities
Exchange Act).
Section 10.14 Successor Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Issuer substantially as an entirety in accordance with Section 10.13 hereof,
the Person formed by or surviving such consolidation or merger (if other than
the Issuer) or the Person to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such Person had
been named as the Issuer herein. In the event of any such conveyance or
transfer, the Person named as the Issuer in the first paragraph of this
Indenture or any successor which shall theretofore have become such in the
manner prescribed in this Section 10.14 shall be released from its obligations
under this Indenture as issued immediately upon the effectiveness of such
conveyance or transfer, provided that the Issuer shall not be released from
any obligations or liabilities to the Indenture Trustee or the Noteholders
arising prior to such effectiveness.
Section 10.15 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture or the Trust Agreement, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section 10.16 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 10.17 Restricted Payments. The Issuer shall not, directly
or indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be made, (x)
distributions as contemplated by, and to the extent funds are available for
such purpose under, the Trust Agreement and (y) payments to the Indenture
Trustee pursuant to Section 7.07 hereof. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection Account
except in accordance with this Indenture or any Indenture Supplement.
Section 10.18 No Borrowing. The Issuer will not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
additional indebtedness, except pursuant to a subordinated note or as
otherwise provided in the Issuer's charter documents.
[END OF ARTICLE X]
ARTICLE XI
EARLY AMORTIZATION OF NOTES
Section 11.01 Applicability of Article. Unless otherwise specified
in the applicable Indenture Supplement related to a Series, Class or Tranche
of Notes, pursuant to the terms of this Article XI, the Issuer will redeem and
pay, provided that funds are available, each affected Series, Class or Tranche
of Notes upon the occurrence of any Early Amortization Event. Unless otherwise
specified in the applicable Indenture Supplement relating to a Series, Class
or Tranche of Notes, or in the form of Notes for such Series, Class or
Tranche, the following are "Early Amortization Events":
(a) the occurrence of an Event of Default and acceleration of the
Notes of a Series, Class or Tranche pursuant to Article VI hereof;
(b) with respect to any Series, Class or Tranche of Notes, the
occurrence of the Scheduled Principal Payment Date of such Series, Class or
Tranche of Notes;
(c) the Issuer becomes an investment company within the meaning of
the Investment Company Act;
(d) any Transferor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
all or substantially all of its property, or a decree or order of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against such Transferor; or such Transferor shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or
(e) with respect to any Series, Class or Tranche of Notes, any
additional Early Amortization Event specified in the Indenture Supplement for
such Series, Class or Tranche of Notes as applying to such Series, Class or
Tranche of Notes.
The repayment price of a Tranche of Notes so redeemed will equal
the Outstanding Dollar Principal Amount of such Tranche, plus accrued, past
due and additional interest to but excluding the date of repayment, the
payment of which will be subject to the allocations, deposits and payments
sections of the related Asset Pool Supplement and Indenture Supplement.
If the Issuer is unable to pay the repayment price in full on the
Principal Payment Date following the end of the Monthly Period in which the
Early Amortization Event occurs, monthly payments on such Tranche of Notes
will thereafter be made on each following Principal Payment Date until the
Outstanding Dollar Principal Amount of such Series, Class or Tranche, plus all
accrued, past due and additional interest, is paid in full or the Legal
Maturity Date occurs, whichever is earlier, subject to the allocations,
deposits and payments sections of the related Asset Pool Supplement and
Indenture Supplement. Any funds in any Supplemental Bank Account for a repaid
Tranche will be applied to make the principal and interest payments on that
Tranche on the repayment date, subject to the allocations, deposits and
payments sections of the related Asset Pool Supplement and Indenture
Supplement.
Section 11.02 Optional Repurchase. Unless otherwise provided in
the applicable Indenture Supplement for a Series, Class or Tranche of Notes,
the Servicer has the right, but not the obligation, to redeem a Series, Class
or Tranche of Notes in whole but not in part on any Payment Date on or after
the Payment Date on which the aggregate Outstanding Dollar Principal Amount
(after giving effect to all payments on such Payment Date) of such Series,
Class or Tranche of Notes is reduced to less than 10% of its highest
Outstanding Dollar Principal Amount at any time (or such other percentage as
shall be specified from time to time by the Servicer, consistent with sale
treatment under GAAP and regulatory accounting principles); provided, however,
that if such Class or Tranche of Notes redeemed is of a Subordinated Class or
Tranche of Notes, the Servicer will not redeem such Notes if the provisions of
the related Indenture Supplement would prevent the payment of such
Subordinated Notes until a level of prefunding of the Principal Funding
Accounts for the Senior Classes of Notes for that Series has been reached such
that the amount of such deficiency in the required subordination of a Senior
Class of Notes is no longer required to provide subordination protection for
the Senior Classes of that Series.
If the Servicer elects to redeem a Series, Class or Tranche of
Notes, it will cause the Issuer to notify the Holders of such redemption at
least 30 days prior to the redemption date. Unless otherwise specified in the
Indenture Supplement or Terms Document applicable to the Notes to be so
redeemed, the redemption price of a Series, Class or Tranche so redeemed will
equal 100% of the Outstanding Dollar Principal Amount of such Tranche, plus
accrued, unpaid and additional interest or principal accreted and unpaid on
such Tranche to but excluding the date of redemption, the payment of which
will be subject to the allocations, deposits and payments sections of the
related Asset Pool Supplement and Indenture Supplement.
If the Issuer is unable to pay the redemption price in full on the
redemption date, monthly payments on such Series, Class or Tranche of Notes
will thereafter be made until either the Outstanding Dollar Principal Amount
of such Series, Class or Tranche, plus all accrued, unpaid and additional
interest, is paid in full or the Legal Maturity Date occurs, whichever is
earlier, subject to Article V, Article VI and the allocations, deposits and
payments sections of the related Indenture Supplement. Any funds in any
Supplemental Bank Account for a redeemed Tranche will be applied to make the
principal and interest payments on that Tranche on the redemption date in
accordance with the related Indenture Supplement. Principal payments on
redeemed Tranches will be made in accordance with the related Indenture
Supplement.
Section 11.03 Notice. Promptly after the occurrence of any Early
Amortization Event or a redemption pursuant to Section 11.02, the Issuer will
notify the Indenture Trustee and the Note Rating Agencies in writing of the
identity, Stated Principal Amount and Outstanding Dollar Principal Amount of
the affected Series, Class or Tranche of Notes to be redeemed. Notice of
redemption will promptly be given as provided in Section 1.06. All notices of
redemption will state (a) the date on which the redemption of the applicable
Series, Class or Tranche of Notes pursuant to this Article XI will begin,
which will be the Principal Payment Date next following the end of the Monthly
Period in which the applicable Early Amortization Event or redemption pursuant
to Section 11.02 occurs, (b) the repayment price for such Series, Class or
Tranche of Notes and (c) the Series, Class or Tranche of Notes to be redeemed
pursuant to this Article XI.
[END OF ARTICLE XI]
ARTICLE XII
MISCELLANEOUS
Section 12.01 No Petition. The Indenture Trustee, by entering into
this Indenture, each Derivative Counterparty, by accepting its rights as a
third party beneficiary hereunder, each Supplemental Credit Enhancement
Provider or Supplemental Liquidity Provider, as applicable, by accepting its
rights as a third party beneficiary hereunder, and each Noteholder, by
accepting a Note, agrees, to the fullest extent permitted by applicable law,
that it will not at any time institute against the Transferor, any Master
Trust or the Issuer, or join in any institution against the Transferor, any
Master Trust or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture, any Derivative Agreement,
any Supplemental Credit Enhancement Agreement and any Supplemental Liquidity
Agreement.
Section 12.02 Trust Obligations. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer or the Owner Trustee or of any successor or
assign of the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Owner Trustee
has no such obligations in its individual capacity).
Section 12.03 Limitations on Liability.
(a) It is expressly understood and agreed by the parties hereto
that (i) this Indenture is executed and delivered by First USA not
individually or personally but solely as Beneficiary, in the exercise of the
powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or
agreement by First USA but is made and intended for the purpose of binding
only the Issuer, (iii) nothing herein contained will be construed as creating
any liability on First USA individually or personally, to perform any covenant
of the Issuer either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties to this Indenture and
by any Person claiming by, through or under them and (iv) under no
circumstances will First USA be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Issuer under this Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, First USA or
any other beneficiary of the Issuer or any of their respective officers,
directors, employers or agents will have any liability with respect to this
Indenture, and recourse of any Noteholder may be had solely to the Collateral
designated for inclusion in the specific Asset Pool and pledged to secure the
applicable Notes.
Section 12.04 Tax Treatment. The Issuer and the Noteholders agree
that the Notes are intended to be debt for federal, state and local income and
franchise tax purposes and agree to treat the Notes accordingly for all such
purposes, unless otherwise required by a taxing authority.
Section 12.05 Actions Taken by the Issuer. Any and all actions
that are to be taken by the Issuer may be taken by either the Beneficiary or
the Owner Trustee on behalf of the Issuer.
Section 12.06 Alternate Payment Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer,
with the written consent of the Indenture Trustee, may enter into any
agreement with any Holder of a Note providing for a method of payment or
notice that is different from the methods provided for in this Indenture for
such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments or
notices, as applicable, to be made in accordance with such agreements.
Section 12.07 Termination of Issuer. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby
(other than the obligation of the Indenture Trustee to make payments to
Noteholders as hereinafter set forth) shall terminate, except with respect to
the duties described in Section 12.08(b), as provided in the Trust Agreement.
Section 12.08 Final Distribution.
(a) The Servicer shall give the Indenture Trustee written notice
of the Payment Date on which the Noteholders of any Series, Class or Tranche
may surrender their Notes for payment of the final distribution on and
cancellation of such Notes at least 2 Business Days prior to the fifth day of
the month in which the final distribution is to occur with respect to such
Notes. Not later than the fifth day of the month in which the final
distribution in respect of such Series, Class or Tranche is payable to
Noteholders, the Indenture Trustee shall provide notice to Noteholders of such
Series, Class or Tranche specifying (i) the date upon which final payment of
such Series, Class or Tranche will be made upon presentation and surrender of
Notes of such Series, Class or Tranche at the office or offices therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such payment date is not applicable,
payments being made only upon presentation and surrender of such Notes at the
office or offices therein specified (which, in the case of Bearer Notes, shall
be outside the United States). The Indenture Trustee shall give such notice to
the Note Registrar and the Paying Agent at the time such notice is given to
Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Series, Class or Tranche of Notes (or the termination of the Issuer), except
as otherwise provided in this clause, all funds then on deposit in any Bank
Account allocated to such Noteholders shall continue to be held in trust for
the benefit of such Noteholders, and the Paying Agent or the Indenture Trustee
shall pay such funds to such Noteholders upon surrender of their Notes, if
certificated. In the event that all such Noteholders shall not surrender their
Notes for cancellation within 6 months after the date specified in the notice
from the Indenture Trustee described in paragraph (a), the Indenture Trustee
shall give a second notice to the remaining such Noteholders to surrender
their Notes for cancellation and receive the final distribution with respect
thereto (which surrender and payment, in the case of Bearer Notes, shall be
outside the United States). If within one year after the second notice all
such Notes shall not have been surrendered for cancellation, the Indenture
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining such Noteholders concerning
surrender of their Notes, and the cost thereof shall be paid out of the funds
in the Collection Account or any Supplemental Bank Account held for the
benefit of such Noteholders. The Indenture Trustee and the Paying Agent shall
pay to the Issuer any monies held by them for the payment of principal or
interest that remains unclaimed for 2 years. After payment to the Issuer,
Noteholders entitled to the money must look to the Issuer for payment as
general creditors unless an applicable abandoned property law designates
another Person.
Section 12.09 Termination Distributions. Upon the termination of
the Issuer pursuant to the terms of the Trust Agreement, the Indenture Trustee
shall release, assign and convey to the Beneficiary or any of its designees,
without recourse, representation or warranty, all of its right, title and
interest in the Collateral designated for inclusion in an Asset Pool, whether
then existing or thereafter created, all monies due or to become due and all
amounts received or receivable with respect thereto (including all moneys then
held in any Bank Account) and all proceeds thereof, except for amounts held by
the Indenture Trustee pursuant to Section 12.08(b). The Indenture Trustee
shall execute and deliver such instruments of transfer and assignment as shall
be provided to it, in each case without recourse, as shall be reasonably
requested by the Beneficiary to vest in the Beneficiary or any of its
designees all right, title and interest which the Indenture Trustee had in the
Collateral and such other property designated for inclusion in an Asset Pool.
Section 12.10 Derivative Counterparty, Supplemental Credit
Enhancement Provider and Supplemental Liquidity Provider as Third-Party
Beneficiary. Each Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider is a third-party beneficiary of
this Indenture to the extent specified in the applicable Derivative Agreement,
Supplemental Credit Enhancement Agreement, Supplemental Liquidity Agreement or
Indenture Supplement.
Section 12.11 Notices.
(i) in the case of Issuer, to:
Bank One Issuance Trust
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
with a copy to:
First USA Bank, National Association
0000 Xxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Gavra Flood
Fax: (000) 000-0000
and to:
BANK ONE CORPORATION
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx,
Fax: (000) 000-0000
and to:
BANK ONE CORPORATION
0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx,
Fax: (000) 000-0000
(ii) in the case of the Indenture Trustee, to:
Xxxxx Fargo Bank Minnesota, N.A.
6th & Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services Asset
Backed Administration
Fax: (000) 000-0000
[END OF ARTICLE XII]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
BANK ONE ISSUANCE TRUST
By: FIRST USA BANK, NATIONAL
ASSOCIATION, as Beneficiary and
not in its individual capacity
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Indenture
Trustee and not in its individual capacity
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
Acknowledged and Accepted:
FIRST USA BANK,
NATIONAL ASSOCIATION,
as Servicer
By: /s/ Xxxxxxx X. Etheringtion
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On [ ], [ ], before me personally came [ ], to me known, who,
being by me duly sworn, did depose and say that he resides at [ ]; that he is
[ ] of [ ], one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the
seal affixed to that instrument is such corporate seal; that it was affixed by
authority of the board of directors of the corporation; and that he signed his
name thereto by like authority.
_______________________
Name
_______________________
[Notarial Seal]
Exhibit A
---------
[FORM OF] INVESTMENT LETTER
[Date]
Xxxxx Fargo Bank Minnesota,
National Association,
as Indenture Trustee,
Sixth & Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services Asset Backed Administration
Bank One Issuance Trust
c/o First USA Bank, National Association, as Beneficiary
[201 North Walnut Street]
[Wilmington, Delaware 19801]
Attention: [ ]
Re: Purchase of $___________* principal amount of Bank One
Issuance Trust, Series [o], Class [o] Notes
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "Notes") we
confirm that:
(1) We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are being sold
to us in a transaction that is exempt from the registration requirements of
the Securities Act.
(2) Any information we desire concerning the Notes or any other
matter relevant to our decision to purchase the Notes is or has been made
available to us.
(3) We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment
in the Notes, and we (and any account for which we are purchasing under
paragraph (4) below) are able to bear the economic risk of an investment in
the Notes. We (and any account for which we are purchasing under paragraph
(iv) below) are an "accredited investor" (as such term is defined in Rule
501(a)(1), (2) or (3) of Regulation D under the Securities Act).
--------
* Not less than $250,000 minimum principal amount.
(4) We are acquiring the Notes for our own account or for accounts as
to which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that
the disposition of our property shall at all times be and remain within our
control.
(5) We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available.
(6) We agree that in the event that at some future time we wish to
dispose of or exchange any of the Notes (such disposition or exchange not
being currently foreseen or contemplated), we will not transfer or exchange
any of the Notes unless:
(a) (i) the sale is of at least U.S. $250,000 principal
amount of Notes to an Eligible Purchaser (as defined below), (ii) a
letter to substantially the same effect as paragraphs (1), (2), (3),
(4), (5) and (6) of this letter is executed promptly by the purchaser
and (3) all offers or solicitations in connection with the sale,
whether directly or through any agent acting on our behalf, are
limited only to Eligible Purchasers and are not made by means of any
form of general solicitation or general advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than two years;
or
(c) the Notes are sold in any other transaction that does
not require registration under the Securities Act and, if the Issuer,
the Servicer, the Trustee or the Note Registrar so requests, we
theretofore have furnished to such party an opinion of counsel
satisfactory to such party, in form and substance satisfactory to
such party, to such effect; or
(d) the Notes are transferred pursuant to an exception from
the registration requirements of the Securities Act under Rule 144A
under the Securities Act; and
(7) We understand that the Notes will bear a legend to substantially
the following effect:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT
AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE
TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE INDENTURE REFERRED TO HEREIN.
This legend may be removed if the Issuer, the Indenture Trustee and
the Note Registrar have received an opinion of counsel, in form and substance
satisfactory to them, to the effect that the legend may be removed.
"Eligible Purchaser" means either an Eligible Dealer or a
corporation, partnership or other entity which we have reasonable grounds to
believe and do believe can make representations with respect to itself to
substantially the same effect as the representations set forth herein.
"Eligible Dealer" means any corporation or other entity the principal business
of which is acting as a broker and/or dealer in securities. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Indenture dated as of May 1, 2002, between Bank One Issuance Trust and Xxxxx
Fargo Bank Minnesota, National Association, as indenture trustee.
Very truly yours,
__________________________
(Name of Purchaser)
By:________________________
(Authorized officer)
Exhibit B-1
-----------
[FORM OF] CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
BANK ONE ISSUANCE TRUST,
Series [o ], Class [o ] Notes
[Insert title or sufficient description of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of
the Series [o ], Class [o ] Notes to be exchanged for definitive Notes (the
"Submitted Portion") pursuant to this certificate (the "Notes") as provided in
the Indenture dated as of May 1, 2002 (as amended and supplemented, the
"Indenture"), in respect of such issue. This is to certify that (i) we have
received a certificate or certificates, in writing or by tested telex, with
respect to each of the persons appearing in our records as being entitled to a
beneficial interest in the Submitted Portion and with respect to such person's
beneficial interest either (a) from such person, substantially in the form of
Exhibit [o ]-[o ] to the Indenture Supplement, or (b) from __________, _____,
substantially in the form of Exhibit [o ]-[o ] to the Indenture Supplement,
and (ii) the Submitted Portion includes no part of the Temporary Global Note
excepted in such certificates.
We further certify that as of the date hereof we have not received
any notification from any of the persons giving such certificates to the
effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings.
Dated: _______, ___, *
[as operator of the Euroclear System]
[Clearstream, Luxembourg]
By__________________________________
_________________
* To be dated on the date of the proposed exchange.
Exhibit B-2
-----------
[FORM OF] CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY [o ] WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED
INSTITUTIONAL BUYERS
BANK ONE ISSUANCE TRUST,
Series [o], Class [o] Notes
In connection with the initial issuance and placement of the Series
[o], Class [o] Notes (the "Notes"), an institutional investor in the United
States (an "institutional investor") is purchasing [U.S.$/(pound)/(U)/SF]
aggregate principal amount of the Notes hold in our account at [ ], as
operator of the Euroclear System] [Clearstream, Luxembourg] on behalf of such
investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with
United States laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered by this
certificate.]
The Definitive Notes in respect of this certificate are to be issued
in registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF] and
such Definitive Notes (and, unless the Indenture or Terms Document relating to
the Notes otherwise provides, any Notes issued in exchange or substitution for
or on registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY
BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR
TO U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH
THE REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS
NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE
REFERRED TO HEREIN. THIS NOTE CANNOT BE EXCHANGED FOR A BEARER NOTE."
Dated: __________, _____,
[ ]
By:_____________________
Authorized Officer
Exhibit B-3
-----------
[FORM OF] CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER OF NOTES,
OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
BANK ONE ISSUANCE TRUST,
Series [o], Class [o] Notes
This is to certify that as of the date hereof and except as provided
in the third paragraph hereof, the Series [o ], Class [o ] Notes held by you
for our account (the "Notes") (i) are owned by a person that is a United
States person, or (ii) are owned by a United States person that is (A) the
foreign branch of a United States financial institution (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) (a "financial institution")
purchasing for its own account or for resale, or (B) a United States person
who acquired the Notes through the foreign branch of a financial institution
and who holds the Notes through the financial institution on the date hereof
(and in either case (A) or (B), the financial institution hereby agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by a financial institution for purposes of resale during the
Restricted Period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)). In addition, financial institutions described in
clause (iii) of the preceding sentence (whether or not also described in
clause (i) or (ii)) certify that they have not acquired the Notes for purposes
of resale directly or indirectly to a United States person or to a person
within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as
to beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to
[U.S.$/(pound)/(U)/SF] principal amount of Notes held by you for our account,
as to which we are not yet able to certify beneficial ownership. We understand
that delivery of Definitive Notes in such principal amount cannot be made
until we are able to so certify.
We understand that this certificate is required in connection with
certain securities and tax laws in the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in
such proceedings. As used herein, "United States" means the United States of
America, including the States and the District of Columbia, its territories,
its possessions and other areas subject to its jurisdiction; and "United
States person" means a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or any political subdivision thereof, or an estate
or trust the income of which is subject to United States federal income
taxation regardless of its source.
Dated: __________, _____*
By:_______________________
Name:
Title:
As, or as agent for, the beneficial owner(s) of the interest in the
Notes to which this certificate relates.
______________________
* 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.
