Exhibit 4.9
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CHASE CREDIT CARD OWNER TRUST 2000-3
Class A Floating Rate Asset Backed Notes
Class B Floating Rate Asset Backed Notes
Class C Floating Rate Asset Backed Notes
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INDENTURE
Dated as of October 3, 2000
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THE BANK OF NEW YORK
as Indenture Trustee, Securities Intermediary and Transfer Agent
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . 2
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2. Incorporation by Reference of Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.3. Usage of Terms . . . . . . . . . . . . . . . . . 17
SECTION 1.4. Calculations of Interest . . . . . . . . . . . . 17
ARTICLE II
THE NOTES . . . . . . . . . . . . . 17
SECTION 2.1. Form . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.2. Execution, Authentication and Delivery . . . . . 18
SECTION 2.3. Temporary Notes . . . . . . . . . . . . . . . . . 18
SECTION 2.4. Registration of Transfer and Exchange . . . . . . 19
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes . . . 21
SECTION 2.6. Persons Deemed Owner . . . . . . . . . . . . . . 22
SECTION 2.7. Payment of Principal and Interest . . . . . . . . 22
SECTION 2.8. Cancellation . . . . . . . . . . . . . . . . . . 25
SECTION 2.9. Release of Collateral . . . . . . . . . . . . . . 25
SECTION 2.10. Book-Entry Notes . . . . . . . . . . . . . . . . 25
SECTION 2.11. Notices to Clearing Agency . . . . . . . . . . . 26
SECTION 2.12. Definitive Notes . . . . . . . . . . . . . . . . 26
SECTION 2.13. Authenticating Agent . . . . . . . . . . . . . . 27
SECTION 2.14. Appointment of Paying Agent . . . . . . . . . . . 28
SECTION 2.15. CUSIP Numbers . . . . . . . . . . . . . . . . . . 29
SECTION 2.16. Determination of LIBOR . . . . . . . . . . . . . 30
ARTICLE III
COVENANTS . . . . . . . . . . . . . 30
SECTION 3.1. Payment of Principal and Interest . . . . . . . . 30
SECTION 3.2. Maintenance of Office or Agency . . . . . . . . . 31
SECTION 3.3. Money for Payments To Be Held in Trust . . . . . 31
SECTION 3.4. Existence . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.5. Protection of Owner Trust Estate . . . . . . . . 32
SECTION 3.6. Opinions as to Owner Trust Estate . . . . . . . . 33
SECTION 3.7. Performance of Obligations; Servicing of Series
Certificate . . . . . . . . . . . . . . . . . . 33
SECTION 3.8. Negative Covenants . . . . . . . . . . . . . . . 34
SECTION 3.9. Annual Statement as to Compliance . . . . . . . . 35
SECTION 3.10. The Issuer May Consolidate, Etc. Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.11. Successor or Transferee . . . . . . . . . . . . 37
SECTION 3.12. No Other Business . . . . . . . . . . . . . . . 37
SECTION 3.13. No Borrowing . . . . . . . . . . . . . . . . . . 38
SECTION 3.14. Administrator's Obligations . . . . . . . . . . 38
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SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities . . . . . . . . . . . . . . . . . . 38
SECTION 3.16. Capital Expenditures . . . . . . . . . . . . . . 38
SECTION 3.17. Restricted Payments . . . . . . . . . . . . . . 38
SECTION 3.18. Notice of Events of Default . . . . . . . . . . 38
SECTION 3.19. Further Instruments and Acts . . . . . . . . . . 38
SECTION 3.20. Removal of Administrator . . . . . . . . . . . . 39
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . 39
SECTION 4.1. Satisfaction and Discharge of Indenture . . . . . 39
SECTION 4.2. Application of Trust Money . . . . . . . . . . . 40
SECTION 4.3. Repayment of Moneys Held by Paying Agent . . . . 40
ARTICLE V
REMEDIES . . . . . . . . . . . . . . 40
SECTION 5.1. Satisfaction and Discharge of Indenture . . . . . 40
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . 41
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by the Indenture Trustee . . . . . . 41
SECTION 5.4. Remedies; Priorities . . . . . . . . . . . . . . 43
SECTION 5.5. Optional Preservation of the Owner Trust Estate . 45
SECTION 5.6. Limitation of Suits . . . . . . . . . . . . . . . 45
SECTION 5.7. Unconditional Rights of Noteholders To Receive
Principal and Interest . . . . . . . . . . . . . 46
SECTION 5.8. Restoration of Rights and Remedies . . . . . . . 46
SECTION 5.9. Rights and Remedies Cumulative . . . . . . . . . 46
SECTION 5.10. Delay or Omission Not a Waiver . . . . . . . . . 47
SECTION 5.11. Control by Noteholders . . . . . . . . . . . . . 47
SECTION 5.12. Waiver of Past Defaults . . . . . . . . . . . . . 47
SECTION 5.13. Undertaking for Costs . . . . . . . . . . . . . . 48
SECTION 5.14. Waiver of Stay or Extension Laws . . . . . . . . 48
SECTION 5.15. Action on Notes . . . . . . . . . . . . . . . . . 48
SECTION 5.16. Performance and Enforcement of Certain
Obligations . . . . . . . . . . . . . . . . . . 49
ARTICLE VI
THE INDENTURE TRUSTEE . . . . . . . . . . 49
SECTION 6.1. Duties of the Indenture Trustee . . . . . . . . . 49
SECTION 6.2. Rights of the Indenture Trustee . . . . . . . . . 51
SECTION 6.3. Individual Rights of the Indenture Trustee . . . 53
SECTION 6.4. The Indenture Trustee's Disclaimer . . . . . . . 53
SECTION 6.5. Notice of Defaults . . . . . . . . . . . . . . . 53
SECTION 6.6. Reports by the Indenture Trustee to Holders . . . 53
SECTION 6.7. Compensation and Indemnity . . . . . . . . . . . 54
SECTION 6.8. Replacement of the Indenture Trustee . . . . . . 54
SECTION 6.9. Successor Indenture Trustee by Merger . . . . . . 55
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee . . . . . . . . . . . . . . . 56
SECTION 6.11. Eligibility; Disqualification . . . . . . . . . 57
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SECTION 6.12. Preferential Collection of Claims Against the
Issuer . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS . . . . . . . . 58
SECTION 7.1. The Issuer To Furnish the Indenture Trustee
Names and Addresses of the Noteholders . . . . 58
SECTION 7.2. Preservation of Information; Communications to
the Noteholders . . . . . . . . . . . . . . . . 58
SECTION 7.3. Reports by the Administrator . . . . . . . . . . 59
SECTION 7.4. Reports by the Issuer . . . . . . . . . . . . . . 59
SECTION 7.5. Reports by the Indenture Trustee . . . . . . . . 60
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES . . . . . . . 60
SECTION 8.1. Collection of Money . . . . . . . . . . . . . . . 60
SECTION 8.2. Owner Trust Accounts . . . . . . . . . . . . . . 60
SECTION 8.3. Owner Trust Spread Account Amount Increase . . . 62
SECTION 8.4. General Provisions Regarding Owner Trust Spread
Account . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.5. Release of Owner Trust Estate . . . . . . . . . . 63
SECTION 8.6. Opinion of Counsel . . . . . . . . . . . . . . . 64
SECTION 8.7. Treatment as Financial Assets . . . . . . . . . . 64
SECTION 8.8. Powers Coupled With an Interest . . . . . . . . . 64
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . 64
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders . . . . . . . . . . . . . . . . . . 64
SECTION 9.2. Supplemental Indentures with Consent of the
Noteholders . . . . . . . . . . . . . . . . . . 65
SECTION 9.3. Effect of Supplemental Indenture . . . . . . . . 67
SECTION 9.4. Conformity with Trust Indenture Act . . . . . . . 67
SECTION 9.5. Reference in Notes to Supplemental Indentures . . 67
SECTION 9.6. Execution of Supplemental Indentures . . . . . . 67
ARTICLE X
REDEMPTION OF NOTES . . . . . . . . . . . 68
SECTION 10.1. Redemption . . . . . . . . . . . . . . . . . . . 68
SECTION 10.2. Supplemental Indenture with Consent of the
Noteholders . . . . . . . . . . . . . . . . . . 68
SECTION 10.3. Notes Payable on Redemption Date . . . . . . . . 69
ARTICLE XI
MISCELLANEOUS . . . . . . . . . . . . 69
SECTION 11.1. Compliance Certificates and Opinions, etc. . . . 69
SECTION 11.2. Form of Documents Delivered to the Indenture
Trustee . . . . . . . . . . . . . . . . . . . . 71
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SECTION 11.3. Actions of Noteholders . . . . . . . . . . . . . 71
SECTION 11.4. Notices, etc., to the Indenture Trustee, the
Issuer, and Note Rating Agencies . . . . . . . 72
SECTION 11.5. Notices to Noteholders; Waiver . . . . . . . . . 73
SECTION 11.6. Alternate Payment and Notice Provisions . . . . 73
SECTION 11.7. Conflict with Trust Indenture Act . . . . . . . 74
SECTION 11.8. Effect of Headings and Table of Contents . . . . 74
SECTION 11.9. Successors and Assigns . . . . . . . . . . . . . 74
SECTION 11.10. Separability . . . . . . . . . . . . . . . . . . 74
SECTION 11.11. Benefits of Indenture . . . . . . . . . . . . . 74
SECTION 11.12. Legal Holidays . . . . . . . . . . . . . . . . . 74
SECTION 11.13. GOVERNING LAW . . . . . . . . . . . . . . . . . 74
SECTION 11.14. Counterparts . . . . . . . . . . . . . . . . . . 74
SECTION 11.15. Recording of Indenture . . . . . . . . . . . . . 74
SECTION 11.16. Trust Obligation . . . . . . . . . . . . . . . . 75
SECTION 11.17. No Petition . . . . . . . . . . . . . . . . . . 75
SECTION 11.18. Inspection . . . . . . . . . . . . . . . . . . . 76
SECTION 11.19. Tax Treatment . . . . . . . . . . . . . . . . . 76
Exhibit A -Form of Class A Note
Exhibit B -Form of Class B Note
Exhibit C -Form of Class C Note
Exhibit D -Form of Note Depository Agreement
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CROSS REFERENCE TABLE<F1>
TIA Section Indenture Section
310 (a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10
(a)(4) N.A.<F2>
(a)(5) 6.11
(b) 6.8; 6.11
(c) N.A.
311 (a) 6.12
(b) 6.12
(c) N.A.
312 (a) 7.1; 7.2
(b) 7.2
(c) 7.2
313 (a) 7.4
(b)(1) 7.4
(b)(2) 7.4
(c) 7.4
(d) 7.3
314 (a) 7.3
(b) 3.6
(c)(1) 11.1
(c)(2) 11.1
11.1
11.1
(f) N.A.
315 (a) 6.1
(b) 6.5; 11.5
(c) 6.1
(d) 6.1
(e) 5.13
316 (a) (last sentence) 1.1
(a)(1)(A) 5.11
(a)(1)(B) 5.12
(a)(2) N.A.
(b) 5.7
(c) N.A.
317 (a)(1) 5.3
(a)(2) 5.3
(b) 3.3
318 (a) 11.7
<F1> Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
<F2> N.A. means Not Applicable.
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INDENTURE dated as of October 3, 2000, between WILMINGTON TRUST
COMPANY, not in its individual capacity but solely as Owner Trustee for
the Chase Credit Card Owner Trust 2000-3, a Delaware common law trust
(the "Issuer"), and THE BANK OF NEW YORK, a New York banking corporation,
as indenture trustee (the "Indenture Trustee"), securities intermediary
and transfer agent and not in its individual capacity.
Each party agrees as follows for the benefit of the other party
and for the benefit of the Holders of the Issuer's Class A Floating Rate
Asset Backed Notes (the "Class A Notes"), Class B Floating Rate Asset
Backed Notes (the "Class B Notes") and Class C Floating Rate Asset Backed
Notes (the "Class C Notes", together with the Class A Notes and the Class
B Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Holders of the
Notes, all right, title and interest of the Issuer in, to and under the
following property whether now owned or hereafter acquired, now existing
or hereafter created and wherever located: all accounts, money, chattel
paper, investment property, instruments, documents, deposit accounts,
certificates of deposit, letters of credit, advices of credit, general
intangibles and goods consisting of, arising from or relating to (a) the
Series Certificate, (b) all money, instruments, investment property and
other property (together with all earnings, dividends, distributions,
income, issues, and profits relating to), distributed or distributable in
respect of the Series Certificate pursuant to the terms of the Series
Supplement, the Pooling and Servicing Agreement or the Deposit and
Administration Agreement; (c) all money, investment property, instruments
and other property on deposit from time to time in, credited to or
related to the Note Distribution Account and the Owner Trust Spread
Account, and in all interest, dividends, earnings, income and other
distributions from time to time received, receivable or otherwise
distributed to or in respect thereto (including any accrued discount
realized on liquidation of any investment purchased at a discount);
provided that the Grant in respect of the Owner Trust Spread Account is
for the exclusive benefit of the Class C Noteholders; (d) all rights,
remedies, powers, privileges and claims of the Issuer under or with
respect to the Series Certificate and the Deposit and Administration
Agreement (whether arising pursuant to the terms of the Deposit and
Administration Agreement or otherwise available to the Issuer at law or
in equity), including, without limitation, the rights of the Issuer to
enforce the Pooling and Servicing Agreement, the Series Supplement and
the Deposit and Administration Agreement, and to give or withhold any and
all consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the Pooling and Servicing Agreement, the
Series Supplement or the Deposit and Administration Agreement to the same
extent as the Issuer could but for the assignment and security interest
granted to the Indenture Trustee for the.2 benefit of the Noteholders;
(e) all other property of the Issuer; and (f) all present and future
claims, demands, causes and choses in action in respect of any or all of
the foregoing and all payments on or under and all proceeds of every kind
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and nature whatsoever in respect of any or all of the foregoing,
including all proceeds, products, rents, receipts or profits of the
conversion, voluntary or involuntary, into cash or other property, all
cash and non-cash proceeds, and other property consisting of, arising
from or relating to all or any part of any of the foregoing or any
proceeds thereof (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of,
the Notes, equally and ratably without prejudice, priority or distinction
except as set forth herein, and to secure compliance with the provisions
of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Holders of
the Notes, acknowledges such Grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and agrees
to perform its duties required in this Indenture to the end that the
interests of the Holders of the Notes and (only to the extent expressly
provided herein) the Certificateholder may be adequately and effectively
protected.
On the date of issuance of the Series Certificate, the Issuer
shall cause the Series Certificate with an undated bond power covering
such Series Certificate, duly executed by the Issuer, and endorsed in
blank, to be delivered to the Indenture Trustee, and the Indenture
Trustee shall maintain possession of the Series Certificate for the
benefit of the Holders of the Notes, subject to the terms of this
Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions. The following terms which are
defined in the Uniform Commercial Code in the State of New York shall
have the meanings set forth therein: "certificated security," "control,"
"financial asset," entitlement order," "investment property," "securities
account," "securities intermediary," and "security entitlement." Whenever
used in this Indenture, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Act" has the meaning specified in Section 11.3(a).
"Administrator" means Chase Manhattan Bank USA, National
Association, as administrator pursuant to the Deposit and Administration
Agreement, and its successors and assigns.
"Affiliate" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with
such specified Person. For purposes of this definition, "control" when
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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. A Person shall not be deemed to be an Affiliate of any
specified Person solely because such other Person has the contractual
right or obligation to manage such specified Person unless such other
Person controls such specified Person through equity ownership or
otherwise.
"Authenticating Agent" has the meaning specified in Section
2.13 and shall initially be the corporate trust office of Chase, and its
successors and assigns in such capacity.
"Authorized Officer" means any officer of the Owner Trustee,
the Administrator or the Servicer, who is authorized to act on behalf of
the Owner Trustee, the Administrator or Issuer, or the Servicer,
respectively, and who is identified as such on the list of authorized
officers delivered by each such party on the Closing Date as such list
may be modified by notice to the other parties.
"Available Amount" means, with respect to each Transfer Date,
an amount equal to the amount to be paid in respect of the Series
Certificate pursuant to Section 4.9 of the Pooling and Servicing
Agreement on such date.
"Basic Documents" means this Indenture, the Deposit and
Administration Agreement, the Trust Agreement, the Pooling and Servicing
Agreement and the Series Supplement and other documents and certificates
delivered in connection therewith.
"Book-Entry Notes" means beneficial interests in the Notes, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency or Foreign Clearing Agency as described in Section 2.10.
"Business Day" means a day, other than a Saturday or a Sunday,
on which the Indenture Trustee and banks located in New York, New York,
and Wilmington, Delaware are open for the purpose of conducting a
commercial banking business.
"Certificate" means the certificate evidencing the beneficial
interest in Chase Credit Card Owner Trust 2000-3, substantially in the
form attached to the Trust Agreement as Exhibit A.
"Certificateholder" means Chase USA.
"Certificate Reassignment Date" has the meaning specified in
the Series Supplement.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
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"Chase USA" means Chase Manhattan Bank USA, National
Association.
"Class A Monthly Note Interest" means, with respect to any
Payment Date, an amount equal to the product of (a) the Class A Note
Interest Rate for the related Note Interest Period, (b) a fraction, the
numerator of which is the actual number of days in such Note Interest
Period and the denominator of which is 360 and (c) the Class A Note
Principal Balance on the related Record Date; provided, however, that
with respect to the November 2000 Payment Date, Class A Monthly Note
Interest will be an amount equal to the product of (a) the Class A Note
Interest Rate determined on September 29, 2000, (b) a fraction the
numerator of which is 43 and the denominator of which is 360 and (c) the
Class A Note Initial Principal Balance.
"Class A Noteholder" means a Holder of a Class A Note.
"Class A Noteholders' Principal Distributable Amount" means,
with respect to any Payment Date on and after the earlier to occur of (a)
the Class A Scheduled Payment Date and (b) any Note Principal Due Date,
the Class A Note Principal Balance on such Payment Date.
"Class A Note Initial Principal Balance" means $750,000,000.
"Class A Note Interest Rate" means, from the Closing Date
through November 14, 2000, and, with respect to each Note Interest Period
thereafter, a per annum rate equal to 0.13% per annum in excess of LIBOR,
as determined on the related LIBOR Determination Date.
"Class A Note Interest Requirement" means, with respect to any
Payment Date, the sum of (a) the Class A Monthly Note Interest for such
Payment Date and (b) the amount of any unpaid Class A Note Interest
Shortfall.
"Class A Note Interest Shortfall" means, with respect to any
Payment Date, the sum of (a) the excess, if any, of (i) the Class A Note
Interest Requirement for the preceding Payment Date, over (ii) the amount
in respect of interest that was actually paid pursuant to subsection
2.4(d) with respect to interest on the Class A Notes for such preceding
Payment Date, plus (b) interest on the amount of interest due but not
paid to the Class A Noteholders on the preceding Payment Date, to the
extent permitted by law, at the Class A Note Interest Rate from and
including such preceding Payment Date to but excluding the current
Payment Date.
"Class A Note Principal Balance" means, with respect to any
date, an amount equal to the excess of (a) the Class A Note Initial
Principal Balance over (b) the aggregate amount of any principal payments
made to the Class A Noteholders pursuant to subsection 2.7(d) prior to
such date.
"Class A Notes" means each of the $750,000,000 Class A Floating
Rate Asset Backed Notes, Series 2000-3.
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"Class A Scheduled Payment Date" means the September 2005
Payment Date.
"Class B Monthly Note Interest" means, with respect to any
Payment Date, an amount equal to the product of (a) the Class B Note
Interest Rate for the related Note Interest Period, (b) a fraction, the
numerator of which is the actual number of days in such Note Interest
Period and the denominator of which is 360 and (c) the Class B Note
Principal Balance on the related Record Date; provided, however, that
with respect to the November 2000 Payment Date, Class B Monthly Note
Interest will be an amount equal to the product of (a) the Class B Note
Interest Rate determined on September 29, 2000, (b) a fraction, the
numerator of which is 43 and the denominator of which is 360 and (c) the
Class B Note Initial Principal Balance.
"Class B Noteholder" means a Holder of a Class B Note.
"Class B Noteholders' Principal Distributable Amount" means,
with respect to any Payment Date on and after the earlier to occur of (a)
the Class B Scheduled Payment Date and (b) any Note Principal Due Date,
the Class B Note Principal Balance on such Payment Date.
"Class B Note Initial Principal Balance" means $62,500,000.
"Class B Note Interest Rate" means, from the Closing Date
through May 14, 2000, and, with respect to each Note Interest Period
thereafter, a per annum rate equal to 0.35% per annum in excess of
LIBOR, as determined on the related LIBOR Determination Date.
"Class B Note Interest Requirement" means, with respect to any
Payment Date, the sum of (a) the Class B Monthly Note Interest for such
Payment Date and (b) the amount of any unpaid Class B Note Interest
Shortfall.
"Class B Note Interest Shortfall" means, with respect to any
Payment Date, the sum of (a) the excess, if any, of (i) the Class B Note
Interest Requirement for the preceding Payment Date, over (ii) the amount
in respect of interest that was actually paid pursuant to subsection
2.7(e) with respect to interest on the Class B Notes for such preceding
Payment Date, plus (b) interest on the amount of interest due but not
paid to the Class B Noteholders on the preceding Payment Date, to the
extent permitted by law, at the Class B Note Interest Rate from and
including such preceding Payment Date to but excluding the current
Payment Date.
"Class B Note Principal Balance" means, with respect to any
date, an amount equal to the excess of (a) the Class B Note Initial
Principal Balance over (b) the aggregate amount of any principal payments
made to the Class B Noteholders pursuant to subsection 2.7(e) prior to
such date.
"Class B Notes" means each of the $62,500,000 Class B Floating
Rate Asset Backed Notes, Series 2000-3.
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"Class B Scheduled Payment Date" means the October 2005 Payment
Date.
"Class C Monthly Note Interest" means, with respect to any
Payment Date, an amount equal to the product of (a) the Class C Note
Interest Rate for the related Note Interest Period, (b) a fraction, the
numerator of which is the actual number of days in such Note Interest
Period and the denominator of which is 360 and (c) the Class C Note
Principal Balance on the related Record Date; provided, however, that
with respect to the November 2000 Payment Date, Class C Monthly Note
Interest will be an amount equal to the product of (a) the Class C Note
Interest Rate determined on September 29, 2000, (b) a fraction the
numerator of which is 43 and the denominator of which is 360 and (c) the
Class C Note Initial Principal Balance.
"Class C Noteholder" means a Holder of a Class C Note.
"Class C Noteholders' Principal Distributable Amount" means,
with respect to any Payment Date on and after the earlier to occur of (a)
the Class C Scheduled Payment Date and (b) any Note Principal Due Date,
the Class C Note Principal Balance on such Payment Date.
"Class C Note Initial Principal Balance" means $80,357,000.
"Class C Note Interest Rate" means, from the Closing Date
through November 14, 2000, and, with respect to each Note Interest Period
thereafter, a per annum rate equal to 0.70% per annum in excess of LIBOR,
as determined on the related LIBOR Determination Date.
"Class C Note Interest Requirement" means, with respect to any
Payment Date, the sum of (a) the Class C Monthly Note Interest for such
Payment Date and (b) the amount of any unpaid Class C Note Interest
Shortfall.
"Class C Note Interest Shortfall" means, with respect to any
Payment Date, the sum of (a) the excess, if any, of (i) the Class C Note
Interest Requirement for the preceding Payment Date, over (ii) the amount
in respect of interest that was actually paid pursuant to subsection
2.7(f) with respect to interest on the Class C Notes for such preceding
Payment Date, plus (b) interest on the amount of interest due but not
paid to the Class C Noteholders on the preceding Payment Date, to the
extent permitted by law, at the Class C Note Interest Rate from and
including such preceding Payment Date to but excluding the current
Payment Date.
"Class C Note Principal Balance" means, with respect to any
date, an amount equal to the excess of (a) the Class C Note Initial
Principal Balance over (b) the aggregate amount of any principal payments
made to the Class C Noteholders pursuant to subsection 2.7(f) prior to
such date.
"Class C Notes" means each of the $80,357,000 Class C Floating
Rate Asset Backed Notes, Series 2000-3.
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"Class C Scheduled Payment Date" means the October 2005 Payment
Date.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act; the
initial Clearing Agency shall be The Depository Trust Company.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other person for whom from time to time a
Clearing Agency effects book-entry transfers of securities deposited with
the Clearing Agency (including a Foreign Clearing Agency).
"Clearstream" means Clearstream Banking, societe anonyme, and
its successors.
"Closing Date" means October 3, 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning assigned to such term in the
Granting Clause hereof.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office" means the principal corporate trust
office of the Indenture Trustee, which as of the date hereof, is located
at 101 Barclay Street, Fl. 12 East, New York, New York 10286, Attn:
Corporate Trust Administration or the corporate trust office of the Owner
Trustee, as applicable.
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Notes" means Notes issued in certificated, fully
registered form as provided in Section 2.12.
"Deposit and Administration Agreement" means the deposit and
administration agreement dated as of October 3, 2000 between the
Depositor and Administrator and Wilmington Trust Company, not in its
individual capacity but solely as Owner Trustee for the Chase Credit Card
Owner Trust 2000-3.
"Depositor" means Chase USA in its capacity as Depositor under
the Trust Agreement.
"Distribution Date" has the meaning specified in the Series
Supplement.
"DTC" means The Depository Trust Company.
"Eligible Deposit Account" means either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account
with the corporate trust department of a depository institution
-7-
organized under the laws of the United States or any one of the states
thereof, including the District of Columbia (or any domestic branch of a
foreign bank), and acting as a trustee for funds deposited in such
accounts, so long as any of the Securities of such depository institution
shall have a credit rating from each Note Rating Agency in one of its
generic credit rating categories which signifies investment grade.
"Eligible Institution" means (a) the Administrator, (b) a
depository institution (which may be the Owner Trust Trustee, the
Indenture Trustee or the Master Trust Trustee or an Affiliate) organized
under the laws of the United States or any one of the states thereof
which at all times (i) has a certificate of deposit rating of "P-1" by
Moody's, (ii) has 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 and (iii) is a member of the FDIC or (c) any other
institution that is acceptable to the Note Rating Agencies.
"Euroclear Operator" means Morgan Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear System.
"Event of Default" means an event specified in Section 5.1.
"Excess Spread Percentage" shall mean, with respect to any
Monthly Period, the amount, if any, by which (i) the Portfolio Yield
exceeds (ii) the Base Rate.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation or
bank, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice
President, the Secretary or the Treasurer of such corporation or bank,
and with respect to any partnership, any general partner thereof.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Fitch" means Fitch IBCA, Inc. and its successors and assigns.
"Foreign Clearing Agency" means, collectively, Clearstream and
the Euroclear Operator.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and grant a
lien upon and a security interest in and right of set-off against,
deposit, set over and confirm pursuant to this Indenture. A Grant of.10
the Trust Estate or of any other agreement or instrument shall include
all rights, powers and options (but none of the obligations) of the
Granting party thereunder, including the immediate and continuing right
to claim for, collect, receive and give receipt for principal and
interest payments and all other moneys payable thereunder, to give and
receive notices and other communications, to make waivers or other
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agreements, to exercise all rights and options, to bring Proceedings in
the name of the Granting party or otherwise and generally to do and
receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" or "Holders" means, unless the context otherwise
requires, both the Certificateholder and Noteholders.
"Indenture Trustee" means The Bank of New York, in its capacity
as indenture trustee pursuant to this Indenture.
"Independent" means, when used with respect to any specified
Person, that the person (a) is in fact independent of the Issuer, any
other obligor upon the Notes, the Depositor and any Affiliate of any of
the foregoing persons, (b) does not have any direct financial interest or
any material indirect financial interest in the Issuer, any such other
obligor, the Depositor or any Affiliate of any of the foregoing Persons
and (c) is not connected with the Issuer, any such other obligor, the
Depositor or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in,
and otherwise complying with, the applicable requirements of Section
11.1, made by an Independent engineer, appraiser or other expert
appointed by the Issuer and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate shall state
that the signer has read the definition of "Independent" in this
Indenture and that the signer is Independent within the meaning thereof.
"Insolvency Event" means, for a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in
the premises in respect of such Person or any substantial part of its
property in an involuntary case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver (including any receiver appointed under the
Financial Institutions Reform, Recovery and Enforcement Act of 1989, as
amended), liquidator, assignee, custodian, trustee, sequestrator or
similar official for such Person or for any substantial part of its
property, or ordering the winding-up or liquidation of such Person's
affairs, and such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or (b) the commencement by such Person
of a voluntary case under any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or
for any substantial part of its property, or the making of such Person of
any general assignment for the benefit of creditors, or the failure by
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such Person generally to pay its debts as such debts become due, or the
taking of action by such Person in furtherance of any of the foregoing.
"Investment Earnings" means, with respect to any Payment Date,
the investment earnings (net of losses and investment expenses) on
amounts on deposit in the Owner Trust Spread Account.
"Issuer" means Chase Credit Card Owner Trust 2000-3, a Delaware
common law trust created under the Trust Agreement acting by and through
Wilmington Trust Company, not in its individual capacity but solely as
Owner Trustee.
"Issuer Order" and "Issuer Request" means a written order or
request signed in the name of the Issuer by any of its Authorized
Officers and delivered to the Indenture Trustee and the Paying Agent.
"LIBOR" means, for any Note Interest Period, the London
interbank offered rate for United States dollar deposits determined by
the Indenture Trustee for each Note Interest Period in accordance with
the provisions of Section 2.16.
"LIBOR Determination Date" shall mean September 29, 2000 for
the period from the Closing Date through November 14, 2000 and (b) the
second London Business Day prior to the commencement of the second and
each subsequent Note Interest Period.
"Lien" means a security interest, lien, charge, pledge or
encumbrance of any kind other than tax liens, mechanics' liens or any
other liens that attach by operation of law.
"London Business Day" means any Business Day on which dealings
in deposits in United States dollars are transacted in the London
interbank market.
"Master Trust" means the Chase Credit Card Master Trust created
pursuant to the Pooling and Servicing Agreement.
"Master Trust Servicer Default" means a Servicer Default as
defined in the Pooling and Servicing Agreement.
"Master Trust Termination Date" means the Series 2000-3
Termination Date, as defined in the Series Supplement.
"Master Trust Trustee" means The Bank of New York, as trustee
under the Pooling and Servicing Agreement and each successor to The Bank
of New York in the same capacity.
"Monthly Period" has the meaning specified in the Series
Supplement.
"Moody's" means Moody's Investors Service, Inc., and its
successors and assigns.
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"Net Class C Note Interest Requirement" means, with respect to
any Payment Date, an amount equal to the Class C Note Interest
Requirement minus the amount of investment earnings on amounts on deposit
in the Owner Trust Spread Account pursuant to Section 8.2 which are
available on such Transfer Date to be applied pursuant to subsection
2.7(b).
"Note" means a Class A Note, a Class B Note, or a Class C Note.
"Note Depository Agreement" means the Note Depository Agreement
substantially in the form of Exhibit D attached hereto.
"Note Distribution Account" means the account designated as
such, established and maintained pursuant to Section 8.2.
"Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Note Initial Principal Balance" means $892,857,000.
"Note Interest Period" means, with respect to any Payment Date,
the period from the previous Payment Date through the day preceding such
Payment Date, except that the initial Note Interest Period will be the
period from the Closing Date through the day preceding the initial
Payment Date.
"Note Interest Rate" means each of the Class A Note Interest
Rate, Class B Note Interest Rate and Class C Note Interest Rate.
"Note Interest Shortfall" means, with respect to any Payment
Date, the amount of any of the Class A Note Interest Shortfall, the Class
B Note Interest Shortfall or the Class C Note Interest Shortfall.
"Note Maturity Date" means the January 2008 Payment Date.
"Note Owner" means, with respect to a Book-Entry Note, the
person who is the owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or Foreign Clearing Agency, or on the books
of a direct or indirect Clearing Agency Participant.
"Note Principal Due Date" means any of (a) the Master Trust
Termination Date, (b) the date on which the Investor Interest is paid in
full, (c) the Note Maturity Date, (d) the Certificate Reassignment Date
and (e) the Payment Date in the month following the Monthly Period in
which a Pay Out Event (including an Event of Default) occurs.
"Note Rate" means any of the Class A Note Interest Rate, Class
B Note Interest Rate and Class C Note Interest Rate.
"Note Rating Agency" means any nationally recognized rating
organization selected by Chase USA to rate the Notes.
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"Note Register" and "Note Registrar" means the register
maintained and the registrar appointed pursuant to Section 2.4.
"Note Registrar" shall have the meaning specified in the
definition of "Note Register".
"Officer's Certificate" means a certificate signed by the
chairman of the board, the president, the treasurer, the controller, any
executive or senior vice president or any vice president of the
Depositor, the Administrator (on behalf of itself or the Issuer), or the
Servicer, as appropriate, meeting the requirements of Section 11.1.
"Opinion of Counsel" means a written opinion of counsel (who
may be counsel to the Depositor, the Administrator or the Servicer)
reasonably acceptable in form and substance to the Indenture Trustee,
meeting the requirements of Section 11.1 (or in the case of an Opinion of
Counsel delivered to the Owner Trustee, reasonably acceptable in form and
substance to the Owner Trustee).
"Outstanding" means, when used with respect to Notes, as of any
date of determination, all Notes theretofore authenticated and delivered
under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of
such Notes (provided that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor, satisfactory to the Indenture Trustee, has been
made); and
(c) Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any
such Notes are held by a bona fide purchaser;
provided that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under
any Basic Document, Notes owned by the Issuer, any other obligor upon the
Notes, the Depositor or any Affiliate of any of the foregoing Persons
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent
or waiver, only Notes that a Responsible Officer of the Indenture Trustee
either actually knows to be so owned or has received written notice that
such Note is so owned shall be so disregarded. Notes so owned that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not
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the Issuer, any other obligor upon the Notes, the Depositor or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means, when used with respect to Notes, as
of any date of determination, the aggregate principal amount of all
Notes, or a class of Notes, as applicable, Outstanding as of such date of
determination.
"Owner Trust Accounts" has the meaning specified in Section
8.2.
"Owner Trust Estate" means all right, title and interest of the
Issuer in and to the property and rights assigned to the Issuer pursuant
to the Deposit and Administration Agreement or the Trust Agreement, all
funds on deposit from time to time in the Owner Trust Accounts and all
other property of the Issuer from time to time, including any rights of
the.15 Owner Trustee and the Issuer granted to the Indenture Trustee
pursuant to Granting Clause of this Indenture.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as owner trustee under the Trust
Agreement, and any successor Owner Trustee thereunder.
"Owner Trust Spread Account" has the meaning specified in
Section 8.2.
"Pay Out Event" has the meaning specified in the Series
Supplement.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified
in Section 6.11 and is authorized by the Indenture Trustee to make the
payments to and distributions from the Note Distribution Account,
including payment of principal of or interest on the Notes on behalf of
the Issuer.
"Payment Date" means November 15, 2000 and the 15th day of each
calendar month thereafter, or if such fifteenth day is not a Business
Day, the next succeeding Business Day.
"Permitted Investments" means instruments, investment property
or other property consisting of:
(a) obligations fully guaranteed by the United States of
America;
(b) demand deposits, time deposits or certificates of deposit
of depository institutions or trust companies, the certificates of
deposit of which have a rating in the highest rating category from
Moody's and Standard & Poor's;
(c) commercial paper having, at the time of the investment, a
rating in the highest rating category from Moody's and Standard & Poor's;
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(d) bankers' acceptances issued by any depository institution
or trust company described in clause (b) above;
(e) certain repurchase agreements transacted with either (i) an
entity subject to the United States federal bankruptcy code or (ii) a
financial institution insured by the FDIC or any broker-dealer with
"retail customers" that is under the jurisdiction of the Securities
Investors Protection Corp.; and
(f) any other investment that by its terms converts to cash
within a finite time period if the Note Rating Agency confirms in writing
that such investment will not adversely affect its then current rating or
ratings of the Notes.
"Person" means a legal person, including any individual,
corporation, limited liability company, estate, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Pooling and Servicing Agreement" means the Third Amended and
Restated Pooling and Servicing Agreement dated as of November 15, 1999
among the Transferor, the Servicer and the Master Trust Trustee, as it
may have been, or may from time to time be, amended, modified or
supplemented.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this
definition, any Note authenticated and delivered under Section 2.5 in
lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action or law or other
judicial or administrative proceeding.
"Quarterly Excess Spread Percentage" means, with respect to any
Monthly Period, the average of the current Excess Spread Percentage and
the Excess Spread Percentages associated with the two immediately
preceding Monthly Periods.
"Rating Agency Condition" means, with respect to any action or
event, that each Note Rating Agency shall have notified the Depositor,
the Administrator, the Indenture Trustee and the Owner Trustee, in
writing, that such action or event will not result in reduction or
withdrawal of any then outstanding rating of any outstanding Note with
respect to which it is the Note Rating Agency.
"Record Date" means, with respect to any Payment Date, the last
Business Day of the immediately preceding calendar month.
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"Redemption Date" means in the case of a redemption of the
Notes pursuant to Section 10.1, the Distribution Date specified by the
Administrator pursuant to such Section 10.1.
"Redemption Price" means, with respect to the Notes of each
Class, the Note Principal Balance of the Notes of such Class then
outstanding plus accrued and unpaid interest thereon at the applicable
Note Interest Rate for such Class on the Payment Date on which the
Transferor exercises its option to repurchase the Series Certificate.
"Reference Banks" means four major banks in the London
interbank market selected by the Issuer.
"Required Owner Trust Spread Account Amount" means an amount
determined on the Closing Date and on or prior to each Transfer Date and,
except as described below, will be equal to $8,928,570 unless the
Quarterly Excess Spread Percentage (i) is less than or equal to 4.50% per
annum but greater than 4.25% per annum, in which case the Required Owner
Trust Spread Account Amount will be equal to an amount equal to 1.50% of
the Note Initial Principal Balance; (ii) is less than or equal to 4.25%
but greater than or equal to 4.00% per annum, in which case the Required
Owner Trust Spread Account Amount will be equal to an amount equal to
2.00% of the Note Initial Principal Balance; (iii) is less than or equal
to 4.00% per annum but greater than 3.50% per annum, in which case the
Required Owner Trust Spread Account Amount will be increased to an amount
equal to 2.50% of the Note Initial Principal Balance; (iv) is less than
or equal to 3.50% per annum but greater than 3.00% per annum, in which
case the Required Owner Trust Spread Account Amount will be equal to an
amount equal to 3.00% of the Note Initial Principal Balance; (v) is less
than or equal to 3.00% per annum but greater than 2.50% per annum, in
which case the Required Owner Trust Spread Account Amount will be equal
to 3.50% of the Note Initial Principal Balance; (vi) is less than or equal
to 2.50% per annum but greater than or equal to 0% per annum, in which
case the Required Owner Trust Spread Account Amount will be equal to an
amount equal to 4.00% of the Note Initial Principal Balance and (vii) is
less than 0% per annum, in which case the Required Owner Trust Spread
Account Amount will be increased to an amount equal to 9.00% of the Note
Initial Principal Balance. Notwithstanding the foregoing, in no event
shall the Required Owner Trust Spread Account Amount exceed the Class C
Note Principal Balance.
"Responsible Officer" means, with respect to the Indenture
Trustee, any officer within the Corporate Trust Office of the Indenture
Trustee, including any Vice President, Assistant Vice President,
Assistant Treasurer, Assistant Secretary, or any other officer of the
Indenture Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the
particular subject.
"Securities Intermediary" has the meaning specified in Section
8.2.
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"Scheduled Payment Date" means each of the Class A Scheduled
Payment Date, the Class B Scheduled Payment Date and the Class C
Scheduled Payment Date.
"Series Certificate" means the Series 2000-3 Certificate issued
by the Master Trust on the Closing Date.
"Series Certificateholder" means Chase Credit Card Owner Trust
2000-3 as the holder of the Series Certificate.
"Series Supplement" means the Series 2000-3 Supplement to the
Pooling and Servicing Agreement.
"Servicer" means Chase, in its capacity as the servicer of the
Receivables under the Pooling and Servicing Agreement, and each successor
to Chase (in the same capacity) pursuant to the Pooling and Servicing
Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Services
and its successors and assigns.
"Transfer Agent" means The Bank of New York, in its capacity as
the transfer agent for the purpose of the original issuance through DTC.
"Transfer Date" means the Business Day immediately proceeding
each Distribution Date.
"Transferor" means (a) with respect to the period prior to June
1, 1996, CMB (formerly known as Chemical Bank) and (b) with respect to
the period beginning on June 1, 1996, Chase USA.
"Trust Agreement" means the Trust Agreement dated as of October
3, 2000, between the Depositor and the Owner Trustee, as the same may be
amended and supplemented from time to time.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939 as in force on the date hereof, unless otherwise specifically
provided.
SECTION 1.2. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
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"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by
Commission rule have the meaning assigned to them by such definitions.
SECTION 1.3. Usage of Terms. With respect to all terms in
this Indenture, the singular includes the plural and the plural the
singular; words importing any gender include the other gender; references
to "writing" include printing, typing, lithography, and other means of
reproducing words in a visible form; references to agreements and other
contractual instruments include all subsequent amendments thereto or
changes therein entered into in accordance with their respective terms
and not prohibited by this Indenture; references to Persons include their
permitted successors and assigns; and the term "including" means
"including without limitation." All references herein to Articles,
Sections, Subsections and Exhibits are references to Articles, Sections,
Subsections and Exhibits contained in or attached to this Indenture
unless otherwise specified, and each such Exhibit is part of the terms of
this Indenture.
SECTION 1.4. Calculations of Interest. All calculations of
interest made hereunder with respect to the Notes shall be made on the
basis of a 360-day year based upon the actual number of days elapsed.
ARTICLE II
THE NOTES
SECTION 2.1. Form. The Notes will be issued in registered
form. The Class A Notes, the Class B Notes and the Class C Notes, in each
case together with the Indenture Trustee's or Authenticating Agent's
certificate of authentication, shall be in substantially the forms set
forth in Exhibits A, B and C, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined to be appropriate by
the officers executing such Notes, as evidenced by their execution of the
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. Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in the minimum denomination of
$1,000 and in integral multiples thereof (except, if applicable, for one
Note representing a residual portion of each class which may be issued in
a denomination other than an integral multiple of $1,000).
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall bind the
Issuer, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the date of authentication and delivery of
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such Notes or did not hold such offices at such date. No Note shall 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 or an Authenticating Agent by the manual or
facsimile signature of one of its authorized signatories, and such
certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered
hereunder. The terms of the Notes set forth in Exhibits A, B and C are
part of the terms of this Indenture.
The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods
(with or without steel engraved borders), all as determined by the
officers executing such Notes, as evidenced by their execution of such
Notes.
SECTION 2.2. Execution, Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers or by any other authorized signatory of the Issuer. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
The Indenture Trustee shall, upon written order of the
Depositor, authenticate and deliver Class A Notes for original issue in
an aggregate principal amount of $750,000,000, Class B Notes for original
issue in an aggregate principal amount of $62,500,000, and Class C Notes
for original issue in the aggregate principal amount of $80,357,000. The
respective aggregate principal amount of Class A Notes, Class B Notes and
Class C Notes outstanding at any time may not exceed such amounts, except
as provided in Section 2.5.
SECTION 2.3. Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and at the direction of the
Issuer, the Indenture Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the Definitive Notes in lieu of which
they are issued and with such variations not inconsistent with the terms
of this Indenture as the officers executing such Notes may determine, as
evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at the office or
agency of the Issuer to be maintained as provided in Section 3.2, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Issuer shall execute and the Indenture Trustee shall
upon receipt of a written order from the Issuer authenticate and deliver
in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall
in all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
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SECTION 2.4. Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Note
Registrar shall provide for the registration of the Notes and the
registration of transfers of the Notes. Chase shall initially be "Note
Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided. In the event that, subsequent to the date of issuance of
the Notes, Chase notifies the Indenture Trustee that it is unable to act
as Note Registrar, the Indenture Trustee shall act, or the Indenture
Trustee shall, with the consent of the Issuer, appoint another bank or
trust company, having an office or agency located in the City of New York
and which agrees to act in accordance with the provisions of this
Indenture applicable to it, to act, as successor Note Registrar under
this Indenture. For so long as any Note is issued as a global Note, the
Issuer may, or if and so long as any of the Notes are listed on the
Luxembourg Stock Exchange and such exchange shall so require, the Issuer
shall appoint a co-registrar in Luxembourg or another European city.
The Indenture Trustee may revoke such appointment and remove
Chase as Note Registrar if the Indenture Trustee determines that Chase
failed to perform its obligations under this Indenture in any material
respect. Chase shall be permitted to resign as Note Registrar upon 30
days' written notice to the Indenture Trustee, the Depositor and the
Administrator; provided, however, that such resignation shall not be
effective and Chase shall continue to perform its duties as Note
Registrar until the Indenture Trustee has appointed a successor Note
Registrar with the consent of the Issuer.
If a Person other than the Indenture Trustee is appointed by
the Issuer as the Note Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Note Registrar
and of the location, and any change in the location, of the Note
Register, and the Indenture Trustee shall have the right to inspect the
Note Register at all reasonable times and to obtain copies thereof, and
the Indenture Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes
and the principal amounts and number of such Notes.
An institution succeeding to the corporate agency business of
the Note Registrar shall continue to be the Note Registrar without the
execution or filing of any paper or any further act on the part of the
Indenture Trustee or such Note Registrar.
The Note Registrar shall maintain in the City of New York an
office or offices or agency or agencies where Notes may be surrendered
for registration of transfer or exchange. The Note Registrar initially
designates its corporate trust office located at 450 West 33rd Street,
New York, New York 10001-2697 as its office for such purposes. The Note
Registrar shall give prompt written notice to the Indenture Trustee, the
Depositor, the Administrator and to the Noteholders of any change in the
location of such office or agency.
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Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section
3.2, if the requirements of Section 8- 401(a) of the Relevant UCC are
met, the Issuer shall execute, the Indenture Trustee shall upon receipt
of a written order from the Issuer authenticate and (if the Note
Registrar is different than the Indenture Trustee, then the Note
Registrar shall) deliver to the Noteholder, in the name of the designated
transferee or transferees, one or more new Notes, in any authorized
denominations, of the same class and a like aggregate principal amount.
At the option of the Holder, the Notes may be exchanged for
other Notes in any authorized denominations, of the same class and a like
aggregate principal amount, upon surrender of the Notes to be exchanged
at such office or agency. Whenever any Notes are so surrendered for
exchange, if the requirements of Section 8-401(a) of the Relevant UCC are
met, the Issuer shall execute and the Indenture Trustee shall
authenticate and (if the Note Registrar is different than the Indenture
Trustee, then the Note Registrar shall) deliver to the Noteholder, the
Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of the
Notes shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be accompanied by
a written instrument of transfer in form satisfactory to the Indenture
Trustee duly executed by, the Holder thereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by a
commercial bank or trust company located, or having a correspondent
located, in the City of New York or the city in which the Corporate Trust
Office is located, or by a member firm of a national securities exchange,
and (ii) accompanied by such other documents as the Indenture Trustee may
require. Each Note surrendered for registration of transfer or exchange
shall be cancelled by the Note Registrar and disposed of by the Indenture
Trustee or Note Registrar in accordance with its customary practice. The
Note Registrar shall notify promptly the Transfer Agent of any transfer
or exchange of the Notes pursuant to this Section 2.4.
No service charge shall be made to a Holder for any
registration of transfer or exchange of the Notes, but the Issuer may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 2.3 or 9.5 not involving any transfer.
The preceding provisions of this section notwithstanding, the
Issuer shall not be required to make, and the Note Registrar need not
register, transfers or exchanges of the Notes selected for redemption or
of any Note for a period of 15 days preceding the due date for any
payment in full with respect to such Note.
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The Issuer hereby appoints the Indenture Trustee as the
Transfer Agent.
SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Note Registrar, or the Note
Registrar receives evidence to its satisfaction of the destruction, loss
or theft of any Note, and (ii) there is delivered to the Note Registrar
and the Indenture Trustee such security or indemnity as may be required
by them to hold the Issuer, the Note Registrar and the Indenture Trustee
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
bona fide purchaser, and provided that the requirements of Section 8-405
of the Relevant UCC are met, the Issuer shall execute and the Indenture
Trustee or an Authenticating Agent shall authenticate and (if the Note
Registrar is different from the Indenture Trustee, the Note Registrar
shall) deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of like class, tenor
and denomination; provided that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become or within seven days
shall be due and payable, or shall have been called for redemption,
instead of issuing a replacement Note, the Issuer may pay such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date
without surrender thereof. If, after the delivery of such replacement
Note or payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer, the Note Registrar and the
Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement
Note was delivered or any assignee of such Person, except a bona fide
purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer, the Note Registrar or the Indenture
Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section,
the Issuer may require the payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including
the fees and expenses of the Indenture Trustee, its agents and counsel)
connected therewith.
Every replacement Note issued pursuant to this Section 2.5 in
replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the Issuer,
whether or not the mutilated, destroyed, lost or stolen Note shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6. Persons Deemed Owner. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture
Trustee, the Note Registrar and any agent of the Issuer, the Indenture
Trustee or the Note Registrar may treat the Person in whose name any Note
is registered (as of the day of determination) as the owner of such Note
for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not
such Note shall be overdue, and neither the Issuer, the Indenture Trustee
or the Note Registrar nor any agent of the Issuer, the Indenture Trustee
or the Note Registrar shall be bound by notice to the contrary.
SECTION 2.7. Payment of Principal and Interest. (a) On each
Transfer Date, the Paying Agent, acting in accordance with written
instructions from the Administrator, shall make, or shall direct the
Master Trust Trustee to make, the following deposits and distributions to
the extent of the Available Amount for such Transfer Date, in the
following order of priority:
(i) to the Note Distribution Account for distribution to the
Class A Noteholders on the related Payment Date, the Class A Note
Interest Requirement for such Transfer Date;
(ii) to the Note Distribution Account for distribution to the
Class B Noteholders on the related Payment Date, the Class B Note
Interest Requirement for such Transfer Date;
(iii) to the Note Distribution Account for distribution to the
Class C Noteholders on the related Payment Date, the Class C Note
Interest Requirement for such Transfer Date;
(iv) to the Note Distribution Account for distribution to the
Class A Noteholders on the related Payment Date, the Class A
Noteholders' Principal Distributable Amount for such Transfer Date;
(v) to the Note Distribution Account for distribution to the
Class B Noteholders on the related Payment Date, the Class B
Noteholders' Principal Distributable Amount for such Transfer Date;
(vi) to the Note Distribution Account for distribution to the
Class C Noteholders on the related Payment Date, the Class C
Noteholders' Principal Distributable Amount for such Transfer Date;
(vii) to the Owner Trust Spread Account, the excess, if any, of
(a) the Required Owner Trust Spread Account Amount for such Transfer
Date over (b) the amount on deposit in the Owner Trust Spread Account
on such Transfer Date (not taking into account the amount deposited
into the Owner Trust Spread Account on such Transfer Date described
by this clause (vii)); and
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(viii) to the Certificateholder, on behalf of the Issuer, the
remaining Available Amount for such Transfer Date, if any.
(b) To the extent that on any Transfer Date the Class C Note
Interest Requirement exceeds the Available Amount available to be
deposited into the Note Distribution Account pursuant to subsection
2.7(a)(iii), funds, to the extent of the lesser of the Required Owner
Trust Spread Account Amount for such Transfer Date and the amount on
deposit in the Owner Trust Spread Account on such Transfer Date, shall be
withdrawn from the Owner Trust Spread Account and deposited in the Note
Distribution Account to be applied to pay the Class C Note Interest
Requirement on the related Payment Date pursuant to subsection 2.7(f).
(c) To the extent that, on the Transfer Date related to the
Class C Scheduled Payment Date if the Class B Note Principal Balance
shall be paid in full on or prior to such Payment Date and on each
Transfer Date following the Class C Scheduled Payment Date and the
payment in full of the Class B Note Principal Balance and, with respect
to any Note Principal Due Date, the Transfer Date on which an amount
equal to the Class B Note Principal Balance has been deposited in the
Note Distribution Account pursuant to subsection 2.7(a)(v), funds, to the
extent of the least of (i) the Required Owner Trust Spread Account Amount
for such Transfer Date, (ii) the excess of the Class C Note Principal
Balance over the Investor Interest and (iii) the amount on deposit in the
Owner Trust Spread Account (in each case after giving effect to any
withdrawals pursuant to subsection 2.7(b) on such Transfer Date) shall be
withdrawn from the Owner Trust Spread Account (after giving effect to any
withdrawals pursuant to subsection 2.7(b) on such Transfer Date) and
deposited in the Note Distribution Account to be applied to pay the Class
C Noteholders' Principal Distributable Amount on the related Payment Date
pursuant to this subsection 2.7(c). On the Note Maturity Date, to the
extent of the lesser of the Required Owner Trust Spread Account Amount
for such Transfer Date and the amount on deposit in the Owner Trust
Spread Account (in each case after giving effect to any withdrawals
pursuant to subsection 2.7(b) and the preceding sentence of this
subsection 2.7(c) on such Transfer Date) shall be withdrawn from the
Owner Trust Spread Account (after giving effect to any withdrawals
pursuant to subsection 2.7(b) and the preceding sentence of this
subsection 2.7(c) on such Transfer Date) and deposited in the Note
Distribution Account to be applied to pay the Class C Noteholders'
Principal Distributable Amount on the Note Maturity Date.
(d) On each Payment Date, the amount deposited in the Note
Distribution Account pursuant to subsection 2.7(a)(i) on the related
Transfer Date shall be paid by the Paying Agent to the Class A
Noteholders in respect of interest on the Class A Notes. On each Payment
Date, beginning with the earlier of the Class A Scheduled Payment Date
and the Note Principal Due Date, the amount deposited in the Note
Distribution Account pursuant to subsection 2.7(a)(iv) on the related
Transfer Date shall be paid by the Paying Agent to the Class A
Noteholders in respect of principal of the Class A Notes. All principal
and interest in respect of the Class A Notes shall be due and payable to
the extent not previously paid on the Note Maturity Date.
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(e) On each Payment Date, the amount deposited in the Note
Distribution Account pursuant to subsection 2.7(a)(ii) on the related
Transfer Date shall be paid by the Paying Agent to the Class B
Noteholders in respect of interest on the Class B Notes. On each Payment
Date, beginning with the earlier of the Class B Scheduled Payment Date
and the Note Principal Due Date, the amount deposited in the Note
Distribution Account pursuant to subsection 2.7(a)(v) on the related
Transfer Date shall be paid by the Paying Agent to the Class B
Noteholders in respect of principal of the Class B Notes. All principal
and interest in respect of the Class B Notes shall be due and payable to
the extent not previously paid on the Note Maturity Date.
(f) On each Payment Date, the amount deposited in the Note
Distribution Account pursuant to subsections 2.7(a)(iii) and 2.7(b) on
the related Transfer Date shall be paid by the Paying Agent to the Class
C Noteholders in respect of interest on the Class C Notes. On each
Payment Date, beginning with the earlier Class C Scheduled Payment Date
and the Note Principal Due Date, the amount deposited in the Note
Distribution Account pursuant to subsections 2.7(a)(vi) and 2.7(c) on the
related Transfer Date shall be paid by the Paying Agent to the Class C
Noteholders in respect of principal of the Class C Notes. All principal
and interest in respect of the Class C Notes shall be due and payable to
the extent not previously paid on the Note Maturity Date.
(g) Any installment of interest or principal, if any, payable
on any Note which is punctually paid or duly provided for by the Issuer
on the applicable Payment Date shall be paid to the Person in whose name
such Note (or one or more Predecessor Notes) is registered on the
preceding Record Date, by check mailed first-class, postage prepaid, to
such Person's address as it appears on the Note Register on such Record
Date, except that, unless Definitive Notes have been issued pursuant to
Section 2.12, with respect to the Notes registered on the Record Date in
the name of the nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment will be made by wire transfer in immediately
available funds to the account designated by such nominee, except for the
final installment of principal payable with respect to such Note on a
Payment Date or on a Note Principal Due Date and except for the
Redemption Price for any Note called for redemption pursuant to Section
10.1 which shall be payable as provided below. The funds represented by
any such checks returned undelivered shall be held in accordance with
Section 3.3.
(h) All principal and interest payments on each class of Notes
shall be made pro rata to the Noteholders of such class entitled thereto.
The Paying Agent shall notify the Person in whose name a Note is
registered at the close of business on the Record Date preceding the
Payment Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be
(i) transmitted by facsimile on such Record Date if Book-Entry Notes are
outstanding or (ii) mailed as provided in Section 10.2 not later than
three Business Days after such Record Date if Definitive Notes are
outstanding and shall specify that such final installment will be payable
only upon presentation and surrender of such Note and shall specify the
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place where such Note may be presented and surrendered for payment of
such installment.
SECTION 2.8. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to
any Person other than the Note Registrar, be delivered to the Note
Registrar and shall be promptly cancelled by the Note Registrar. The
Issuer may at any time deliver to the Note Registrar for cancellation any
Notes previously authenticated and delivered hereunder which the Issuer
may have acquired in any manner whatsoever, and all Notes so delivered
shall be promptly cancelled by the Note Registrar. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes may be held or disposed of by the Note
Registrar in accordance with its standard retention or disposal policy as
in effect at the time unless the Issuer shall direct that they be
destroyed or returned to it; provided that such direction is timely and
the Notes have not been previously disposed of by the Note Registrar.
SECTION 2.9. Release of Collateral. Subject to Section 11.1,
the Indenture Trustee shall release property from the lien of this
Indenture only upon request of the Issuer accompanied by an Officer's
Certificate, an Opinion of Counsel and Independent Certificates in
accordance with the TIA Sections 314(c) and 314(d)(1) or an Opinion of
Counsel in lieu of such Independent Certificates to the effect that the
TIA does not require any such Independent Certificates.
SECTION 2.10. Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing
the Book-Entry Notes, to be delivered to The Depository Trust Company
(the initial Clearing Agency) by, or on behalf of, the Issuer. Such Notes
shall initially be registered on the Note Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Note Owner will
receive a Definitive Note representing such Note Owner's interest in such
Note, except as provided in Section 2.12. Unless and until Definitive
Notes have been issued to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section shall be in full force and
effect;
(b) the Note Registrar, the Paying Agent and the Indenture
Trustee shall be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of principal of and
interest on the Notes and the giving of instructions or directions
hereunder) as the sole Holder of the Notes, and shall have no obligation
to the Note Owners;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section shall control;
(d) the rights of the Note Owners shall be exercised only
through the Clearing Agency (or to the extent the Note Owners are not
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Clearing Agency Participants, through the Clearing Agency Participants
through which such Note Owners own Book-Entry Notes) and shall be limited
to those established by law and agreements between such Note Owners and
the Clearing Agency and/or the Clearing Agency Participants, and all
references in this Indenture to actions by the Noteholders shall refer to
actions taken by the Clearing Agency upon instructions from the Clearing
Agency Participants, and all references in this Indenture to
distributions, notices, reports and statements to the Noteholders shall
refer to distributions, notices, reports and statements to the Clearing
Agency, as registered holder of the Notes, as the case may be, for
distribution to the Note Owners in accordance with the procedures of the
Clearing Agency. Pursuant to the Note Depository Agreement, unless and
until Definitive Notes are issued pursuant to Section 2.12, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and
interest on the Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of the Holders of the Notes
evidencing a specified percentage of the Outstanding Amount of the Notes,
the Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from the Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes and has delivered such instructions to the Indenture Trustee.
SECTION 2.11. Notices to Clearing Agency. Whenever a notice
or other communication to the Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to
the Note Owners pursuant to Section 2.12, the Indenture Trustee shall
give all such notices and communications specified herein to be given to
the Holders of the Notes to the Clearing Agency, and shall have no
obligation to the Note Owners.
SECTION 2.12. Definitive Notes. If (a) the Administrator
advises the Indenture Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with
respect to the Notes, and the Administrator is unable to locate a
qualified successor, (b) the Administrator at its option advises the
Indenture Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency, or (c) after the occurrence of an
Event of Default or a Master Trust Servicer Default, the Note Owners
representing beneficial interests aggregating not less than a majority of
the Outstanding Amount of the Notes advise the Indenture Trustee and the
Clearing Agency through the Clearing Agency Participants in writing, and
if the Clearing Agency shall so notify the Indenture Trustee that the
continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of the Note Owners, then the Clearing Agency
shall notify all the Note Owners of the occurrence of any such event and
of the availability of Definitive Notes to the Note Owners requesting the
same. Upon surrender to the Note Registrar of the typewritten Note or
Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by re-registration instructions, the Issuer shall execute and
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the Indenture Trustee shall authenticate and (if the Note Registrar is
different than the Indenture Trustee, then the Note Registrar shall)
deliver the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of the Definitive Notes, the Indenture
Trustee shall recognize the Holders of the Definitive Notes as the
Noteholders.
SECTION 2.13. Authenticating Agent. (a) The Indenture
Trustee may appoint one or more authenticating agents (each, an
"Authenticating Agent") with respect to the Notes which shall be
authorized to act on behalf of the Indenture Trustee in authenticating
the Notes in connection with the issuance, delivery, registration of
transfer, exchange or repayment of the Notes. The Indenture Trustee
hereby appoints Chase as Authenticating Agent for the authentication of
the Notes upon any registration of transfer or exchange of such Notes.
Whenever reference is made in this Indenture to the authentication of the
Notes by the Indenture Trustee or the Indenture Trustee's certificate of
authentication, such reference shall be deemed to include authentication
on behalf of the Indenture Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Indenture Trustee
by an Authenticating Agent. Each Authenticating Agent, other than Chase,
shall be acceptable to the Issuer.
(b) Any institution succeeding to the corporate agency
business of an Authenticating Agent shall continue to be an
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Indenture Trustee or such Authenticating
Agent.
(c) An Authenticating Agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and the Issuer.
The Indenture Trustee may at any time terminate the agency of an
Authenticating Agent by giving notice of termination to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be acceptable to the Indenture
Trustee or the Issuer, the Indenture Trustee promptly may appoint a
successor Authenticating Agent with the consent of the Issuer. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of
its predecessor hereunder, with like effect as if originally named.31 as
an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless acceptable to the Issuer.
(d) The Administrator shall pay the Authenticating Agent from
time to time reasonable compensation for its services under this Section
2.13.
(e) The provisions of Sections 6.1, 6.2, 6.3, 6.4, 6.7 and 6.9
shall be applicable, mutatis mutandis, to any Authenticating Agent.
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(f) Pursuant to an appointment made under this Section 2.13,
the Notes may have endorsed thereon, in lieu of the Indenture Trustee's
certificate of authentication, an alternate certificate of authentication
in substantially the following form:
This is one of the Notes referred to in the within mentioned
Indenture.
THE BANK OF NEW YORK
as Indenture Trustee
By:
------------------------------
Authorized Signatory
or
------------------------------
as Authenticating Agent
for the Indenture Trustee,
------------------------------
Authorized Officer
SECTION 2.14. Appointment of Paying Agent. (a) The Indenture
Trustee may appoint a Paying Agent with respect to the Notes. The
Indenture Trustee hereby appoints Chase as the initial Paying Agent. The
Paying Agent shall have the revocable power to withdraw funds from the
Owner Trust Accounts and make distributions to the Noteholders and the
Certificateholders, pursuant to Section 2.7. For so long as any of the
Notes are listed on the Luxembourg Stock Exchange or other stock exchange
and such exchange so requires, the Indenture Trustee shall maintain a co-
paying agent in Luxembourg or the location required by such other stock
exchange. 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 shall have failed to perform its obligations under
this Indenture in any material respect or for other good cause. Chase
shall be permitted to resign as Paying Agent upon 30 days' written.32
notice to the Depositor and the Indenture Trustee. In the event that
Chase shall no longer be the Paying Agent, the Indenture Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or
trust company and may be the Indenture Trustee) with the consent of the
Depositor, which consent shall not be unreasonably withheld. If at any
time the Indenture Trustee shall be acting as the Paying Agent, the
provisions of Sections 6.1, 6.3 and 6.4 shall apply, mutatis mutandis, to
the Indenture Trustee in its role as Paying Agent.
The Indenture Trustee will cause each Paying Agent, other than
itself and Chase, to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture
Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so
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agrees), subject to the provisions of this Section, that such Paying
Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to
the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it in trust for the payment of
the Notes if at any time it ceases to meet the standards required to
be met by the Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(b) Chase in its capacity as initial Paying Agent hereunder
agrees that it (i) will hold all sums held by it hereunder for payment to
the Noteholders in trust for the benefit of the Noteholders entitled
thereto (and with respect to the Owner Trust Spread Account, to the
extent specified herein, the benefit of the Certificateholder) until such
sums shall be paid to such Noteholders and (ii) shall comply with all
requirements of the Code regarding the withholding by the Indenture
Trustee of payments in respect of United States federal income taxes due
from Note Owners.
(c) An institution succeeding to the corporate agency business
of the Paying Agent shall continue to be the Paying Agent without the
execution or filing of any paper or any further act on the part of the
Indenture Trustee or such Paying Agent.
SECTION 2.15. CUSIP Numbers. The Issuer in issuing the Notes
may use "CUSIP" numbers (if then generally in use), and, if so, the
Indenture Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by
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any defect in or omission of such numbers. The Issuer will promptly
notify the Indenture Trustee of any change in the "CUSIP" numbers.
SECTION 2.16. Determination of LIBOR.
(a) On each LIBOR Determination Date, the Indenture Trustee
shall determine LIBOR on the basis of the rate for deposits in United
States dollars for a one-month period which appears on Telerate Page 3750
as of 11:00 a.m., London time, on such date. If such rate does not appear
on Telerate Page 3750, the rate for that LIBOR Determination Date shall
be determined on the basis of the rates at which deposits in United
States dollars are offered by the Reference Banks at approximately 11:00
a.m., London time, on that day to prime banks in the London interbank
market for a one-month period. The Indenture Trustee shall request the
principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations are provided, the
rate for that LIBOR Determination Date shall be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested,
the rate for that LIBOR Determination Date will be the arithmetic mean of
the rates quoted by major banks in New York City, selected by the Issuer,
at approximately 11:00 a.m., New York City time, on that day or loans in
United States dollars to leading European banks for a period equal to the
relevant Note Interest Period. Notwithstanding the foregoing, LIBOR for
the period from the Closing Date through November 14, 2000, as determined
on the initial LIBOR Determination Date, shall mean the result of the
following calculation: the sum of (i) the product of (A) 13 divided by 30
and (B) LIBOR for a two-month period, as determined using the same method
described in the paragraph above, less LIBOR as defined in the paragraph
above, plus (ii) LIBOR as defined in the paragraph above.
(b) The Indenture Trustee shall provide the Note Interest Rate
applicable to the then current and immediately preceding Note Interest
Periods to any Noteholder requesting such information by telephoning the
Indenture Trustee at the telephone number which is currently (212) 815-
5286.
(c) On each LIBOR Determination Date prior to 12:00 noon New
York City time, the Indenture Trustee shall send to the Issuer by
facsimile notification of LIBOR for the following Note Interest Period.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest. The Issuer
will duly and punctually pay the principal of and interest on the Notes
in accordance with the terms of the Notes and this Indenture. Without
limiting the foregoing, the Issuer will cause to be distributed all
amounts on deposit in the Note Distribution Account on a Payment Date
deposited therein pursuant to Section 2.7 hereof and the Series
Supplement (i) for the benefit of the Class A Notes, to the holders of
the Class A Notes, (ii) for the benefit of the Class B Notes, to the
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holders of the Class B Notes, (iii) for the benefit of the Class C Notes,
to the holders of the Class C Notes, and (iv) to the extent so specified,
to the Certificateholder. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal
shall be considered as having been paid by the Issuer to such Noteholder
for all purposes of this Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer will
maintain in the City of New York an office or agency where Notes may be
surrendered for registration of transfer or exchange. The Issuer hereby
initially appoints the Note Registrar to serve as its agent for the
foregoing purposes. For so long as any of the Notes are listed on the
Luxembourg Stock Exchange or other stock exchange and such exchange so
requires, the Indenture Trustee shall maintain an office or agency in
Luxembourg or in the location required by such other stock exchange. The
Issuer will give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of any such office or
agency. If at any time the Issuer shall fail to maintain any such office
or agency or shall fail to furnish the Indenture Trustee with the address
thereof, such surrenders, notices and demands may be made or served at
the Corporate Trust Office, and the Issuer hereby appoints the Indenture
Trustee as its agent to receive all such surrenders, notices and demands.
SECTION 3.3. Money for Payments To Be Held in Trust. As
provided in Section 8.2, all payments of amounts due and payable with
respect to any Notes that are to be made from amounts withdrawn from the
Note Distribution Account or the Owner Trust Spread Account pursuant to
Section 8.2 shall be made on behalf of the Issuer by the Indenture
Trustee or by a Paying Agent, and no amounts so withdrawn from the Note
Distribution Account or the Owner Trust Spread Account for payments on
the Notes shall be paid over to the Issuer except as provided in this
Section 3.3.
On or before each Payment Date and Redemption Date, the Master
Trust Trustee shall deposit or cause to be deposited in the Note
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless the Paying Agent is
the Indenture Trustee) shall promptly notify the Indenture Trustee of its
action or failure so to act.
The Issuer may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee
upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such a payment by any Paying Agent to the
Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Subject to applicable laws with respect to the escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in
trust for the payment of any amount due with respect to any Note and
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remaining unclaimed for two years after such amount has become due and
payable shall be discharged from such trust and be paid to the Issuer on
its request; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof
(but only to the extent of the amounts so paid to the Issuer), and all
liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided that the Indenture
Trustee or such Paying Agent, before being required to make any such
repayment, shall at the expense of the Issuer cause to be published once,
in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer. The Indenture Trustee shall also adopt and employ,
at the expense of the Issuer, any other reasonable means of notification
of such repayment (including, but not limited to, mailing notice of such
repayment to the Holders whose notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due
and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record
for each such Holder).
SECTION 3.4. Existence. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will keep in full effect its
existence, rights and franchises as a common law trust under the laws of
the State of Delaware (unless it becomes, or any successor to the Issuer
hereunder is or becomes, organized under the laws of any other state or
of the United States of America, in which case the Issuer will keep in
full effect its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture,
the Notes, the Collateral and each other instrument or agreement included
in the Owner Trust Estate.
SECTION 3.5. Protection of Owner Trust Estate. The Issuer
will from time to time prepare (or shall cause to be prepared), execute
and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further
assurance and other instruments, and will take such other action
necessary or advisable to:
(a) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(b) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(c) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
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(d) preserve and defend title to the Owner Trust Estate and
the rights of the Indenture Trustee and the Noteholders in such Owner
Trust Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be filed by the Indenture
Trustee pursuant to this Section.
SECTION 3.6. Opinions as to Owner Trust Estate. (a) On the
Closing Date, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel,
such action has been taken with respect to the recording and filing of
this Indenture, any indentures supplemental hereto, and any other
requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements, as are necessary to
perfect and make effective the lien and security interest of this
Indenture and reciting the details of such action, or stating that, in
the opinion of such counsel, no such action is necessary to make such
lien and security interest effective.
(b) On or before March 31 of each calendar year, commencing
with March 31, 2001, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel,
such action has been taken with respect to the recording, filing, re-
recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation
statements as are necessary to maintain the perfection of the lien and
security interest created by this Indenture and reciting the details of
such action or stating that in the opinion of such counsel no such action
is necessary to maintain the perfection of such lien and security
interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution
and filing of any financing statements and continuation statements that
will, in the opinion of such counsel, be required to maintain the
perfection of the lien and security interest of this Indenture until
March 31 in the following calendar year.
SECTION 3.7. Performance of Obligations; Servicing of Series
Certificate. (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 Owner Trust
Estate 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 ordered by
any bankruptcy or other court or as expressly provided in this Indenture,
any other Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such
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duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Administrator to
assist the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Owner
Trust Estate, including but not limited to preparing (or causing to be
prepared) and 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 Deposit and Administration Agreement in
accordance with and within the time periods provided for herein and
therein.
(d) If the Issuer shall have knowledge of the occurrence of a
Master Trust Servicer Default under the Pooling and Servicing Agreement,
the Issuer shall promptly notify the Indenture Trustee and the Note
Rating Agencies thereof in accordance with Section 11.4, and shall
specify in such notice the action, if any, the Issuer is taking in
respect of such default. If a Master Trust Servicer Default shall arise
from the failure of the Servicer to perform any of its duties or
obligations under the Pooling and Servicing Agreement with respect to the
Series Certificate, the Issuer shall take all reasonable steps available
to it to remedy such failure.
(e) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the
rights of the Indenture Trustee hereunder, the Issuer agrees that, unless
such action is specifically permitted hereunder or under the other Basic
Documents, it will not, without the prior written consent of the
Indenture Trustee or the Holders of at least a majority of Outstanding
Amount of the Notes, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral or the
Basic Documents, or waive timely performance or observance by the
Administrator or the Transferor under the Deposit and Administration
Agreement; provided that no such amendment shall (i) increase or reduce
in any manner the amount of, or accelerate or delay the timing of,
distributions that are required to be made for the benefit of the
Noteholders, or (ii) reduce the aforesaid percentage of the Notes which
are required to consent to any such amendment, without the consent of the
Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by the
Indenture Trustee or such Holders, the Issuer agrees, promptly following
a request by the Indenture Trustee to do so, to execute and deliver, in
its own name and at its own expense, such agreements, instruments,
consents and other documents as are necessary or appropriate or as the
Indenture Trustee may deem necessary or appropriate under the
circumstances.
SECTION 3.8. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
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(a) except as expressly permitted by this Indenture or the
other Basic Documents, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those included
in the Owner Trust Estate, unless directed to do so by the Indenture
Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Owner Trust
Estate; or
(c) (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly permitted
hereby, (ii) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Indenture) to
be created on or extend to or otherwise arise upon or burden the Owner
Trust Estate or any part thereof or any interest therein or the proceeds
thereof (other than tax liens, mechanics' liens and other liens that
arise by operation of law) or (iii) permit the lien of this Indenture not
to constitute a valid first priority (other than with respect to any such
tax, mechanics' or other lien) security interest in the Owner Trust
Estate.
SECTION 3.9. Annual Statement as to Compliance. The Issuer
will deliver to the Indenture Trustee on or before March 31 of each year,
commencing March 31, 2001 and otherwise in compliance with the
requirements of TIA Section 314(a)(4), an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that:
(a) a review of the activities of the Issuer during such year
and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions and covenants
in all material respects under this Indenture throughout such year, or,
if there has been a default in the compliance of any such condition or
covenant, specifying each such default known to such Authorized Officer
and the nature and status thereof.
SECTION 3.10. The Issuer May Consolidate, Etc. Only on Certain
Terms. (a) The Issuer shall not consolidate or merge with or into any
other Person, unless
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America or any
State thereof and shall expressly assume, by an indenture
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supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all the 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;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer or any Noteholder;
(v) such entity is not subject to regulation as an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(vi) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vii) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply
with this Section 3.10 and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this Indenture
or the other Basic Documents, the Issuer shall not convey or transfer all
or substantially all of its properties or assets, including those
included in the Owner Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any State thereof, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all the Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all
as provided herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of the
Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend and hold
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harmless the Issuer against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E)
expressly agree by means of such supplemental indenture that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer or any Noteholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply
with this Section 3.10 and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any
consolidation or merger of the Issuer in accordance with Section 3.10(a),
the Person formed by or surviving such consolidation or merger (if other
than the Issuer) 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.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer in accordance with Section 3.10(b), Chase Credit Card Owner Trust
2000-3 and the Owner Trustee will be released from every covenant and
agreement of this Indenture to be observed or performed on the part of
the Issuer with respect to the Notes immediately upon the delivery of
written notice to the Indenture Trustee from the Person acquiring such
assets and properties stating that Chase Credit Card Owner Trust 2000-3
and the Owner Trustee are to be so released.
SECTION 3.12. No Other Business. The Issuer shall not engage
in any business other than financing, purchasing, owning, selling and
managing the Series Certificate in the manner contemplated by this
Indenture and the other Basic Documents, issuing the Notes, making
payments thereon, and such other activities that are necessary, suitable
or desirable to accomplish the foregoing or are incidental to the
purposes as set forth in Section 2.3 of the Trust Agreement.
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SECTION 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for money borrowed in respect of the Notes or in
accordance with the Basic Documents.
SECTION 3.14. Administrator's Obligations. The Issuer shall
use its best efforts to cause the Administrator to comply with the
Deposit and Administration Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Deposit and Administration
Agreement or this Indenture, 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 assuming 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 3.16. Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for
capital assets (either realty or personalty) other than the purchase of
the Series Certificate and related property pursuant to the Deposit and
Administration Agreement.
SECTION 3.17. Restricted Payments. The Issuer shall not,
directly or indirectly, (a) 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, (b) redeem,
purchase, retire, or otherwise acquire for value any such ownership or
equity interest or security or (c) set aside or otherwise segregate any
amounts for any such purpose; provided that the Issuer may make, or cause
to be made, distributions to the Depositor, the Owner Trustee, the
Administrator, the Indenture Trustee, Chase USA and the Noteholders as
permitted by, and to the extent funds are available for such purpose
under, the Basic Documents. The Issuer will not, directly or indirectly,
make payments to or distributions from the Note Distribution Account
except in accordance with this Indenture and the other Basic Documents.
SECTION 3.18. Notice of Events of Default. The Issuer agrees
to give the Indenture Trustee and the Note Rating Agencies prompt (and in
any event within five Business Days) written notice of each Event of
Default, Master Trust Servicer Default and each default on the part of
the Depositor of its obligations under the Deposit and Administration
Agreement.
SECTION 3.19. Further Instruments and Acts. The Issuer will
execute and deliver such further instruments and do such further acts as
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may be reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 3.20. Removal of Administrator. So long as any Notes
are Outstanding, the Issuer shall not remove the Administrator without
cause unless the Rating Agency Condition shall have been satisfied in
connection with such removal.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes
except as to (a) rights of registration of transfer and exchange, (b)
substitution of mutilated, destroyed, lost or stolen Notes, (c) rights of
Noteholders to receive payments of principal thereof and interest
thereon, (d) Sections 3.2, 3.3, 3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.15,
3.16 and 3.18, (e) the rights, obligations and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture
Trustee under Section 6.7 and the obligations of the Indenture Trustee
under Section 4.2 and (f) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture
Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when,
(i) either:
(A) all Notes theretofore authenticated and delivered
(other than (1) the Notes that have been destroyed, lost or
stolen and that have been replaced or paid as provided in
Section 2.5 and (2) the Notes for which payment money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have
been delivered to the Indenture Trustee for cancellation;
(B) all Notes not theretofore delivered to the Indenture
Trustee for cancellation have become due and payable and the
Issuer has irrevocably deposited or caused to be irrevocably
deposited with the Indenture Trustee cash or direct obligations
of or obligations guaranteed by the United States of America
(which will mature prior to the date such amounts are payable),
in trust for such purpose, in an amount sufficient to pay and
discharge the entire unpaid principal and accrued interest on
such Notes not theretofore delivered to the Indenture Trustee
for cancellation when due on their respective Scheduled Payment
Dates, Note Maturity Date or Redemption Date (if the Notes
shall have been called for redemption pursuant to Section
10.1);
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(ii) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable
requirements of Section 11.1 and each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of Issuer to the Indenture Trustee under Section 6.7 and, if
money shall have been deposited with the Indenture Trustee pursuant to
subclause (B) of clause (i) of this Section, the obligations of Indenture
Trustee under Section 4.2 and the last paragraph of Section 3.3 shall
survive such satisfaction and discharge.
SECTION 4.2. Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.1(i)(B) shall be held in
trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying
Agent, as the Indenture Trustee may determine, to the Holders of the
particular Notes for the payment or redemption of which such moneys have
been deposited with the Indenture Trustee, of all sums due and to become
due thereon for principal and interest; but such moneys need not be
segregated from other funds except to the extent required herein or in
the Deposit and Administration Agreement or required by law.
SECTION 4.3. Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with
respect to the Notes, all moneys then held by any Paying Agent other than
the Indenture Trustee under the provisions of this Indenture with respect
to such Notes shall, upon demand of the Issuer, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and thereupon
such Paying Agent shall be released from all further liability with
respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) the failure by the Issuer to pay the outstanding principal
amount of any Class of Notes in full on the Note Maturity Date;
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(b) a failure by the Issuer to pay any interest on any of the
Notes on any Payment Date, and such failure shall continue for 35 days;
(c) an Insolvency Event occurs related to the Issuer;
(d) failure on the part of the Issuer duly to observe or
perform in any material respect any covenants or agreements of the Issuer
set forth herein, which failure has a material adverse effect on the
Noteholders and which continues unremedied for a period of 60 days after
the date on which written notice of such failure, requiring the same to
be remedied, shall have been given to the Issuer by the Administrator or
the Indenture Trustee, or to the Issuer and the Indenture Trustee by the
Holders of Notes representing an Outstanding Amount aggregating more than
50% of the Outstanding Amount of the Notes and continues to affect
materially and adversely the interests of the Noteholders for such
period; and
(e) the Issuer is subject to regulation as an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default shall occur and be continuing, then and
in every such case the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the Outstanding Amount of the
Notes may declare all the Notes to be immediately due and payable, by a
notice in writing to the Issuer (and to the Indenture Trustee if given by
the Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due
and payable.
At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the money
due has been obtained by the Indenture Trustee as hereinafter in this
Article V; provided, the Holders of the Notes representing a majority of
the Outstanding Amount of the Notes, by written notice to the Issuer and
the Indenture Trustee, may rescind and annul such declaration and its
consequences; provided, that, no such rescission shall affect any
subsequent default or impair any right consequent thereto.
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by the Indenture Trustee. (a) The Issuer covenants that if
(i) default is made in the payment of any interest on any Note when the
same becomes due and payable, and such default continues beyond the grace
period specified herein for such payment, or (ii) default is made in the
payment of the principal of any Note when the same becomes due and
payable, the Issuer will, upon demand of the Indenture Trustee, pay to
it, for the benefit of the Holders of the Notes, the whole amount then
due and payable on such Notes for principal and interest, with interest
upon the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Notes.
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(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same against
the Issuer or other obligor upon such Notes and collect in the manner
provided by law out of the property of the Issuer or other obligor upon
such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in
its discretion, proceed to protect and enforce its rights and the rights
of the Noteholders, by such appropriate proceedings as the Indenture
Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes or any Person having or claiming an
ownership interest in the Owner Trust Estate, proceedings under Title 11
of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person,
or in the case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence, bad faith or willful misconduct) and of the Noteholders
allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or person performing similar functions in
any such proceedings;
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(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders and of
the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of the Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar
official in any such proceeding is hereby authorized by each of such
Noteholders to make payments to the Indenture Trustee, and, in the event
that the Indenture Trustee shall consent to the making of payments
directly to such Noteholders, to pay to the Indenture Trustee such
amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses and
liabilities.48 incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee except as a result of negligence
or willful misconduct.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights
of any Holder thereof or to authorize the Indenture Trustee to vote in
respect of the claim of any Noteholder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production
thereof in any trial or other proceedings relative thereto, and any such
action or proceedings instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery
of judgment, subject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Notes.
(g) In any proceedings brought by the Indenture Trustee (and
also any proceedings involving the interpretation of any provision of
this Indenture to which the Indenture Trustee shall be a party), the
Indenture Trustee shall be held to represent all the Holders of the
Notes, and it shall not be necessary to make any Noteholder a party to
any such proceedings.
SECTION 5.4. Remedies; Priorities. (a) If an Event of
Default shall have occurred and be continuing and the Notes have been
accelerated under Section 5.2, the Indenture Trustee may do one or more
of the following (subject to Section 5.5):
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(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Owner
Trust Estate;
(iii) exercise any remedies of a secured party under the
Relevant UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Holders of the Notes; and
(iv) sell the Owner Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law;
provided that the Indenture Trustee may not sell or otherwise liquidate
the Owner Trust Estate following an Event of Default, unless (A) the
Holders of 100% of the Outstanding Amount of the Notes consent thereto,
(B) the proceeds of such sale or liquidation distributable to the
Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon such Notes for principal and interest and the sum of the
Class A Note Principal Balance, Class B Note Principal Balance and Class
C Note Principal Balance plus accrued interest thereon, or (C)(1) there
has been an Event of Default described in Section 5.1(a) or (b), (2) the
Indenture Trustee determines that the Owner Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Notes as they would have become due if the Notes had not
been declared due and payable, and (3) the Indenture Trustee obtains the
consent of Holders of 66-2/3% of the Outstanding Amount of the Notes. In
determining such sufficiency or insufficiency with respect to clauses (B)
and (C), the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as
to the sufficiency of the Owner Trust Estate for such purpose. In
addition, the Indenture Trustee may sell or otherwise liquidate the
portion of the Owner Trust Estate consisting of the Series Certificate
only in accordance with and upon satisfaction of the requirements of
Section 16 of the Series Supplement.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out such money or property held
as Collateral for the benefit of the Noteholders in the following order:
FIRST: to Holders of the Class A Notes for amounts due and
unpaid on the Class A Notes for interest and principal, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Class A Notes for interest and principal;
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SECOND: to Holders of the Class B Notes for amounts due and
unpaid on the Class B Notes for interest and principal, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Class B Notes for interest and principal;
THIRD: to Holders of the Class C Notes for amounts due and
unpaid on the Class C Notes for interest and principal, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Class C Notes for interest and principal;
FOURTH: to the Issuer for payment of all liabilities of the
Issuer in accordance with the Basic Documents and applicable law; and
FIFTH: to the Certificateholders.
The Indenture Trustee may, upon notification to the Issuer, fix
a record date and payment date for any payment to Noteholders pursuant to
this Section. At least fifteen (15) days before such record date, the
Indenture Trustee shall mail or send by facsimile to each Noteholder a
notice that states the record date, the payment date and the amount to be
paid.
SECTION 5.5. Optional Preservation of the Owner Trust Estate.
If the Notes have been declared to be due and payable under Section 5.2
following an Event of Default and such declaration and its consequences
have not been rescinded and annulled, the Indenture Trustee may, but need
not, elect to maintain possession of the Owner Trust Estate. It is the
desire of the parties hereto and the Noteholders that there be at all
times sufficient funds for the payment of principal of and interest on
the Notes, and the Indenture Trustee shall take such desire into account
when determining whether to maintain possession of the Owner Trust
Estate. In determining whether to maintain possession of the Owner Trust
Estate, the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as
to the sufficiency of the Owner Trust Estate for such purpose.
SECTION 5.6. Limitation of Suits. No Holder of any Note shall
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 of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount
of the Notes have made written request to the Indenture Trustee to
institute such proceeding in respect of such Event of Default in its own
name as the Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in complying with such request;
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(d) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute such
proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of the Notes
shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of the Notes or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any
right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
the Notes, each representing less than a majority of the Outstanding
Amount of the Notes, the Indenture Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture.
SECTION 5.7. Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute
and unconditional, to receive payment of the principal of and interest,
if any, on such Note on or after the respective due dates thereof
expressed in such Note or in this Indenture (or, in the case of
redemption, on or after the Redemption Date) and to institute suit for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.8. Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to
enforce any right or remedy under this Indenture and such Proceeding has
been discontinued or abandoned for any reason or has been determined
adversely to the Indenture Trustee or to such Noteholder, then and in
every such case the Issuer, the Indenture Trustee and the Noteholders
shall, 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 and the
Noteholders shall continue as through no such proceeding had been
instituted.
SECTION 5.9. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to
the Noteholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, 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, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
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SECTION 5.10. Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise
any right or remedy accruing upon any Default or Event of Default shall
impair any such right or remedy or constitute a waiver of any such
Default or Event of Default or an acquiescence therein. Every right and
remedy given by this Article V or by law to 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 or by the Noteholders, as
the case may be.
SECTION 5.11. Control by Noteholders. The Holders of a
majority of the Outstanding Amount of the Notes shall have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee;
provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Owner Trust Estate
shall be by the Holders of the Notes representing not less than 100% of
the Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Owner Trust
Estate pursuant to such Section, then any direction to the Indenture
Trustee by Holders of the Notes representing less than 100% of the
Outstanding Amount of the Notes to sell or liquidate the Owner Trust
Estate shall be of no force and effect;
(d) the Indenture Trustee may take any other action deemed
necessary by the Indenture Trustee that is not inconsistent with such
direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, the Indenture Trustee
need not take any action that it determines might involve it in liability
or might materially adversely affect the rights of any Noteholders not
consenting to such action.
SECTION 5.12. Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes as provided
in Section 5.2, the Holders of the Notes of not less than a majority of
the Outstanding Amount of the Notes may, on behalf of all such Holders,
waive any past Default or Event of Default and its consequences except a
Default (a) in payment of principal of or interest on any of the Notes or
(b) in respect of a covenant or provision hereof which cannot be modified
or amended without the consent of the Holder of each Note. In the case of
any such waiver, the Issuer, the Indenture Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
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respectively; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to
have occurred, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto. The Issuer shall give prompt written
notice of any waiver to the Note Rating Agencies.
SECTION 5.13. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Indenture Trustee
for any action taken, suffered or omitted by it as the Indenture Trustee,
the filing by any party litigant in such Proceeding of an undertaking to
pay the costs of such Proceeding, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees
and expenses, against any party litigant in such Proceeding, 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 shall not apply
to (a) any suit instituted by the Indenture Trustee, (b) any suit
instituted by any Noteholder or group of Noteholders, in each case
holding in the aggregate more than 10% of the Outstanding Amount of the
Notes, or (c) any suit instituted by any Noteholder for the enforcement
of the payment of principal of or interest on any Note on or after the
respective due dates expressed in such Note and in this Indenture (or, in
the case of redemption, on or after the Redemption Date).
SECTION 5.14. 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, that 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, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 5.15. Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall
not be affected by the seeking, obtaining or application of any other
relief under or with respect to this Indenture. Neither the lien of this
Indenture nor any rights or remedies of the Indenture Trustee or the
Noteholders shall be impaired by the recovery of any judgment by the
Indenture Trustee against the Issuer or by the levy of any execution
under such judgment upon any portion of the Owner Trust Estate or upon
any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04(b).
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SECTION 5.16. Performance and Enforcement of Certain
Obligations. (a) The Issuer agrees to take all such lawful action as is
necessary to compel or secure the performance and observance by the
Depositor and the Administrator, as applicable, of each of their
respective obligations to the Issuer under or in connection with the
Deposit and Administration Agreement in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with
the Deposit and Administration Agreement, including the transmission of
notices of default on the part of the Depositor or the Administrator
thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Depositor or the
Administrator of each of their respective obligations under the Deposit
and Administration Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing and which may be via facsimile) of the Holders of 66-2/3% of the
Outstanding Amount of the Notes shall, foreclose upon its security
interest in the Issuer's rights under the Deposit and Administration
Agreement and exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Depositor or the Administrator under or
in connection with the Deposit and Administration Agreement, including
the right or power to take any action to compel or secure performance or
observance by the Depositor or the Administrator of each of their
respective obligations to the Issuer thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the
Deposit and Administration Agreement, and any right of the Issuer to take
such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of the Indenture Trustee. (a) The
Indenture Trustee, both prior to and after the occurrence of an Event of
Default, shall undertake to perform such duties and only such duties as
are specifically set forth in this Indenture and the Deposit and
Administration Agreement. If an Event of Default actually known to the
Indenture Trustee has occurred and is continuing, the Indenture Trustee
shall exercise the rights and powers vested in it by this Indenture and
the Deposit and Administration Agreement and use the same degree of care
and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs;
provided, however, that if the Indenture Trustee shall assume the duties
of the Administrator pursuant to Section 5.2 of the Deposit and
Administration Agreement, the Indenture Trustee in performing such duties
shall use the degree of skill and attention customarily exercised by an
administrator with respect to a similar trust estate that it administers
for itself.
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The Indenture Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders, or other
instruments furnished to the Indenture Trustee that shall be specifically
required to be furnished pursuant to any provision of this Indenture or
the Deposit and Administration Agreement, shall examine them to determine
whether they substantially conform to the requirements of this Indenture
or the Deposit and Administration Agreement; provided, however, that the
Indenture Trustee shall not be responsible for the accuracy or content of
any such resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Administrator to the Indenture
Trustee pursuant to this Indenture or the Deposit and Administration
Agreement and the Indenture Trustee need not confirm or investigate the
accuracy of any mathematical calculations or other facts stated therein.
(b) No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent
action, its own negligent failure to act or its own bad faith or wilful
misconduct; provided, however, that:
(i) prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default, the Indenture Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and the Deposit and
Administration Agreement, and no implied covenants or obligations
shall be read into this Indenture or the Deposit and Administration
Agreement against the Indenture Trustee, and in the absence of bad
faith on its part or manifest error, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture or the Deposit and Administration
Agreement;
(ii) The Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts nor shall the Indenture Trustee be liable with
respect to any action it takes or omits to take in good faith in
accordance with this Indenture or in accordance with a direction
received by it pursuant to Section 5.11; and
(iii) the Indenture Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Notes or Certificates, determined as provided
in Sections 2.1, 2.4 and 5.12, 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
or Certificates.
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(c) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in
writing with the Issuer.
(d) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the
terms of this Indenture or the Deposit and Administration Agreement.
(e) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or indemnity satisfactory
to it against such risk or liability is not assured to it, and none of
the provisions contained in this Indenture shall in any event require the
Indenture Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Administrator (including
its obligations as custodian) under this Indenture except during such
time, if any, as the Indenture Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of, the
Administrator in accordance with the terms of the Deposit and
Administration Agreement.
(f) The Indenture Trustee shall not be charged with knowledge
of an Event of Default until such time as a Responsible Officer shall
have actual knowledge or have received written notice thereof.
(g) Except for actions expressly authorized by this Indenture
or, based upon an Opinion of Counsel, in the best interests of the
Noteholders, the Indenture Trustee shall take no action reasonably likely
to impair the security interests created or existing under any asset
which is part of the Collateral or to impair the value of any asset which
is part of the Collateral.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture
Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
SECTION 6.2. Rights of the Indenture Trustee. (a) The
Indenture Trustee may conclusively rely on any document (whether in its
original or facsimile form) believed by it to be genuine and to have been
signed or presented by the proper person. The Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Opinion of Counsel. The Indenture Trustee shall not be
liable for any action it takes, suffers or omits to take in good faith in
reliance on the Opinion of Counsel.
(c) 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 or a custodian or nominee, and the Indenture
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Trustee shall not be responsible for any misconduct or negligence on the
part of, or for the supervision of, any such agent, attorney, custodian
or nominee appointed with due care by it hereunder. The Indenture Trustee
shall have no duty to monitor the performance of the Issuer.
(d) The Indenture Trustee shall not be personally liable for
any action it takes or omits to take in good faith which it believes to
be authorized or within its rights or powers; provided, that the
Indenture Trustee's conduct does not constitute willful misconduct,
negligence or bad faith.
(e) The Indenture Trustee may consult with counsel of its own
selection, and the written advice or opinion of counsel with respect to
legal matters relating to this Indenture and the Notes shall be full and
complete authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the written advice or opinion of such counsel. A copy of
such written advice or Opinion of Counsel shall be provided to the
Depositor, the Administrator and the Note Rating Agencies.
(f) Prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, the Indenture
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, or
other paper or document, unless requested in writing to do so by Holders
of the Notes evidencing not less than 25% of the Outstanding Amount of
the Notes; provided, however, that if the payment within a reasonable
time to the Indenture Trustee of the costs, expenses, or liabilities
likely to be incurred by it in the making of such investigation shall be,
in the opinion of the Indenture Trustee, not reasonably assured to the
Indenture Trustee by the security afforded to it by the terms of this
Indenture, the Indenture Trustee may require reasonable indemnity
satisfactory to it against such cost, expense, or liability or payment of
such expenses as a condition precedent to so proceeding. If the Indenture
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Issuer, personally or by agent or attorney at the sole cost of the Issuer
and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation. Nothing in this clause (f) shall
affect the obligation of the Issuer or the Administrator to observe any
applicable law prohibiting disclosure of information regarding the
obligors.
(g) The Indenture Trustee shall 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 Holders pursuant to this
Indenture, unless such Holders shall have offered to the Indenture
Trustee security or indemnity satisfactory to the Indenture Trustee
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
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(h) The Indenture Trustee shall not be deemed to have notice
of any Default or Event of Default unless a Responsible Officer of the
Indenture Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the Indenture
Trustee at the Corporate Trust Office of the Indenture Trustee, and such
notice references the Notes and Certificate and this Indenture.
(i) The rights, privileges, protections, immunities and
benefits given the Indenture Trustee, including, without limitation, its
right to be indemnified are extended to, and shall be enforceable by, the
Indenture Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 6.3. Individual Rights of the Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the
owner or pledgee of the Notes and may otherwise deal with the Issuer
or its Affiliates with the same rights it would have if it were not the
Indenture Trustee; provided, however, that the Indenture Trustee shall
take no such action that shall cause it to no longer meet the
requirements of Rule 3(a)-7(a)(4)(i) under the Investment Company Act of
1940, as amended (the "Investment Company Act"). Any Paying Agent, the
Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and
6.12.
SECTION 6.4. The Indenture Trustee's Disclaimer. The
Indenture Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Notes, shall not be accountable for the Issuer's use of the proceeds from
the Notes, and shall not be responsible for any statement of the Issuer
in the Indenture or in any document issued in connection with the sale of
the Notes or in the Notes other than the Indenture Trustee's certificate
of authentication.
SECTION 6.5. Notice of Defaults. If a Default occurs and is
continuing and if it is either actually known or written notice of the
existence thereof has been delivered to a Responsible Officer of the
Indenture Trustee, the Indenture Trustee shall mail to each Noteholder
notice of the Default within 90 days after such knowledge or notice
occurs. Except in the case of a Default in accordance with the provisions
of Section 313(c) of the TIA in payment of principal of or interest on
any Note (including payments pursuant to the mandatory redemption
provisions of such Note), the Indenture Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interest of the
Noteholders.
SECTION 6.6. Reports by the Indenture Trustee to Holders.
Within the prescribed period of time for tax reporting purposes after the
end of each calendar year during the term of this Indenture, the
Indenture Trustee shall deliver to each Noteholder such information as
may be reasonably required to enable such Holder to prepare its United
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States federal, state and local income or franchise tax returns for such
calendar year.
SECTION 6.7. Compensation and Indemnity. The Issuer shall
cause the Administrator pursuant to the Deposit and Administration
Agreement to pay to the Indenture Trustee from time to time such
compensation as agreed upon from time to time for its services. The
Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall cause the
Administrator pursuant to the Deposit and Administration Agreement to
reimburse the Indenture Trustee for all out-of-pocket expenses incurred
or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Issuer shall
cause the Administrator pursuant to the Deposit and Administration
Agreement to fully indemnify the Indenture Trustee and any predecessor
Indenture Trustee against any and all loss, liability, claim, damage or
expense (including the fees and expenses of either in-house counsel or
outside counsel, but not both) incurred by it in connection with the
acceptance and administration of this trust including costs and expenses
of defending itself against any claim (whether asserted by the Issuer or
any Holder or any other Person) or liability in connection with the
performance of its duties hereunder. The Indenture Trustee shall, upon a
Responsible Officer obtaining actual knowledge thereof, notify the Issuer
and the Administrator promptly of any claim for which it may seek
indemnity.
The Administrator's payment obligations to the Indenture
Trustee pursuant to this Section shall survive the discharge of this
Indenture. When the Indenture Trustee incurs expenses after the
occurrence of a Default specified in Section 5.1(d) with respect to the
Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
Notwithstanding anything herein to the contrary, the Indenture
Trustee's right to enforce any of the Administrator's payment obligations
pursuant to this Section 6.7 shall be subject to the provisions of
Section 11.16 and Section 11.17.
SECTION 6.8. Replacement of the Indenture Trustee. (a) The
Indenture Trustee may give notice of its intent to resign at any time by
so notifying the Issuer. The Holders of a majority in Outstanding Amount
of the Notes may remove the Indenture Trustee by so notifying the
Indenture Trustee and may appoint a successor Indenture Trustee. The
Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or insolvent;
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(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the
Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to
the Issuer and thereupon the resignation or removal of the Indenture
Trustee shall become effective, and the successor Indenture Trustee,
without any further act, deed or conveyance shall have all the rights,
powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as the Indenture Trustee to the successor Indenture
Trustee.
(d) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee gives notice of its
intent to resign or is removed, the retiring Indenture Trustee, the
Issuer or the Holders of a majority in Outstanding Amount of the Notes
may petition at the expense of the Issuer any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section
6.11, any Noteholder may petition any court of competent jurisdiction for
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee.
(f) Any resignation or removal of the Indenture Trustee and
appointment of a successor Indenture Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Indenture Trustee pursuant to Section 6.8(c)
and payment of all fees and expenses owed to the outgoing Indenture
Trustee.
(g) Notwithstanding the resignation or removal of the
Indenture Trustee pursuant to this Section, the Issuer's and the
Administrator's obligations under Section 6.7 shall continue for the
benefit of the retiring Indenture Trustee. The Indenture Trustee shall
not be liable for the acts or omissions of any successor Indenture
Trustee.
SECTION 6.9. Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets
to, another corporation or banking association, the resulting, surviving
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or transferee corporation without any further act shall be the successor
Indenture Trustee. The Indenture Trustee shall provide the Issuer and the
Note Rating Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor
Indenture Trustee, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any
successor Indenture Trustee may authenticate such Notes either in the
name of any predecessor Indenture Trustee hereunder or in the name of the
successor Indenture Trustee; and in all such cases such certificate of
authentication shall have the same full force as is provided anywhere in
the Notes or in this Indenture with respect to the certificate of
authentication of the Indenture Trustee.
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal requirement
of any jurisdiction in which any part of the Issuer may at the time be
located, the Indenture Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-
trustee or co-trustees, or separate trustee or separate trustees, of all
or any part of the Issuer, and to vest in such Person or Persons, in such
capacity and for the benefit of the Noteholders, such title to the
Issuer, or any part hereof, and, subject to the other provisions of this
Section, such power, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. The Administrator
will pay all reasonable fees and expenses of any co-trustee or co-
trustees or separate trustee or separate trustees. The appointment of any
separate trustee or co-trustee shall not absolve the Indenture Trustee of
its obligations under this Indenture. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as an
Indenture Trustee under Section 6.11, and no notice to the Noteholders of
the appointment of any co-trustee or separate trustee shall be required
under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
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Issuer or the Owner Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, including acts
or omissions of predecessor or successor trustees; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee
shall refer to this Indenture and the conditions of this Article VI. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of
this Indenture, specifically including every provision of this Indenture
relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be
filed with the Indenture Trustee (with a copy given to the Issuer).
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Indenture on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Indenture
Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
SECTION 6.11. Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA
Section 310(a). The Indenture Trustee shall at all times meet the
requirements of Rule 3(a)-7(a)(4)(i) under the Investment Company Act and
shall not provide credit or credit enhancement to the Issuer. The
Indenture Trustee shall have a combined capital and surplus of at least
$150,000,000 as of the last day of the most recent fiscal quarter for
such institution and shall be subject to examination or supervision by
federal or state authorities. The Indenture Trustee shall not be an
Affiliate of the Issuer, the Transferor, the Administrator or the
Servicer. The long-term unsecured debt of the Indenture Trustee shall at
all times be rated not lower than "BBB-" by Standard & Poor's and Fitch
(if rated by Fitch) and "Baa3" by Moody's or such other ratings as are
acceptable to the Note Rating Agencies. The Indenture Trustee shall
comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); provided that
there shall be excluded from the operation of TIA Section 310(b)(1) any
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indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in the TIA
Section 310(b)(1) are met.
SECTION 6.12. Preferential Collection of Claims Against the
Issuer. The Indenture Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). An
Indenture Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. The Issuer To Furnish the Indenture Trustee Names
and Addresses of the Noteholders. The Issuer will furnish or cause to be
furnished to the Indenture Trustee (a) not more than five days after each
Record Date, a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Holders as of such Record Date
and (b) at such other times as the Indenture Trustee may request in
writing, within 14 days after receipt by the Issuer of any such request,
a list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished, provided that so long as the
Indenture Trustee is the Note Registrar, no such list shall be required
to be furnished.
SECTION 7.2. Preservation of Information; Communications to
the Noteholders. (a) The Indenture Trustee shall preserve, in as current
a form as is reasonably practicable, the names and addresses of the
Holders of Notes contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.1 or, if the Indenture Trustee
is acting as Note Registrar, the names and addresses of the Holders of
Notes received by the Indenture Trustee in its capacity as the Note
Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in such Section 7.1 upon receipt of a new list so furnished.
(b) The Noteholders may communicate pursuant to TIA
Section 312(b) with other Noteholders with respect to their rights under
this Indenture or under the Notes. Upon the issuance of Definitive Notes,
three or more holders of the Notes (each of whom has owned a Note for at
least six months) may, by written request to the Indenture Trustee
pursuant to the terms of the Indenture, obtain access to the list of all
Noteholders maintained by the Indenture Trustee for the purpose of
communicating with other Noteholders with respect to their rights under
the Indenture or the Notes. The Indenture Trustee may elect not to afford
the requesting Noteholders access to the list of such Noteholders if it
agrees to mail the desired communication or proxy, on behalf and at the
expense of the requesting Noteholders, to all Noteholders of record.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
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SECTION 7.3. Reports by the Administrator. On or prior to each
Transfer Date, the Administrator will provide to the Indenture Trustee
for the Indenture Trustee to forward to each Noteholder of record, and to
the Owner Trustee, a statement setting forth (to the extent applicable)
the following information as to the Notes with respect to the related
Payment Date or the period since the previous Payment Date, as
applicable:
(i) the amount of the distribution allocable to principal of
the Notes;
(ii) the amount of the distribution allocable to interest on or
with respect to the Notes;
(iii) the aggregate outstanding principal balance of the Notes
after giving effect to all payments reported under clause (i) above
on such date; and
(iv) the amount on deposit in a Owner Trust Spread Account, if
any, on such Payment Date, after giving effect to all transfers and
withdrawals therefrom and all transfers and deposits thereto on such
Payment Date, and the amount required to be on deposit in the Owner
Trust Spread Account on such date.
Each amount set forth pursuant to clauses (i) and (ii) above
will be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes.
SECTION 7.4. Reports by the Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee within 15 days after the
Issuer is required to file the same with the Commission, copies of
any annual reports and of any information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Issuer may be required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.4(a) as may be required by rules and
regulations prescribed from time to time by the Commission.
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(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall end on December 31 of each year.
SECTION 7.5. Reports by the Indenture Trustee. Within 60 days
after each July 15, beginning with July 15, 2000 the Indenture Trustee
shall mail to each Noteholder as required by TIA Section 313(c) a brief
report dated as of such date that complies with TIA Section 313(a). The
Indenture Trustee also shall comply with TIA Section 313(b). A copy of
each report at the time of its mailing to Noteholders shall be filed by
the Indenture Trustee with the Commission and each stock exchange, if
any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange or
delisted therefrom. On each Payment Date, the Indenture Trustee shall
include with each payment to each Noteholder a copy of the statement for
the related Monthly Period provided to the Indenture Trustee pursuant to
subsection 4.1(d) of the Deposit and Administration Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Money. Except as otherwise
provided herein, the Indenture Trustee may demand payment or delivery of,
and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to
this Indenture. The Indenture Trustee shall apply all such money received
by it as provided in this Indenture and the Deposit and Administration
Agreement. Except as otherwise provided in this Indenture, if any default
occurs in the making of any payment or performance under any agreement or
instrument that is part of the Owner Trust Estate, the Indenture Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings. Any such action shall be without prejudice to any right to
claim a Default or Event of Default under this Indenture and any right to
proceed thereafter as provided in Article V.
SECTION 8.2. Owner Trust Accounts. On or prior to the Closing
Date, the Issuer shall cause the Administrator to establish and maintain,
an Eligible Deposit Account, in the name of the Indenture Trustee, for
the benefit of the Noteholders, the "Note Distribution Account" and
another Eligible Deposit Account in the name of the Indenture Trustee for
the benefit of the Class C Noteholders and, to the extent expressly
provided herein, the Certificateholder, the "Owner Trust Spread Account".
The "Note Distribution Account" shall bear a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Noteholders. The "Owner Trust Spread Account" shall bear a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Class C Noteholders and the Certificateholder. The
Indenture Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Note Distribution Account and
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the Owner Trust Spread Account (collectively, the "Owner Trust Accounts") and
in all proceeds thereof. The Note Distribution Account shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the
Noteholders. The Owner Trust Spread Account shall be under the sole dominion
and control of the Indenture Trustee for the benefit of the Class C Noteholders
(and, to the extent expressly provided herein, the Certificateholder). Each
Owner Trust Account shall be a securities account. The Bank of New York
agrees that it is the securities intermediary (the "Securities
Intermediary") with respect thereto, and as such agrees that the account
is maintained for the Issuer and, subject to the terms of this agreement,
that the Issuer is entitled to exercise the rights that comprise any
financial asset credited to the related Owner Trust Account. All
securities or other property underlying any financial assets credited to
the Owner Trust Accounts shall be registered in the name of The Bank of
New York, indorsed to The Bank of New York in blank or credited to
another securities account maintained in the name of The Bank of New York
and in no case will any financial asset credited to the Owner Trust
Accounts be registered in the name of the Issuer, payable to the order of
the Issuer or specially indorsed to the Issuer. Until termination of this
Indenture, the Issuer shall not be entitled to give the Indenture Trustee
any entitlement orders with respect to the Owner Trust Accounts. If, at
any time, any Owner Trust Account ceases to be an Eligible Deposit
Account, the Administrator shall notify the Indenture Trustee, and the
Indenture Trustee upon being notified (or the Administrator on its
behalf) shall, within 10 Business Days, establish a new Owner Trust
Account which meets the conditions specified in the definition of
Eligible Deposit Account, and shall transfer any cash or any investments
to such new Owner Trust Account. The Indenture Trustee, at the direction
of the Administrator, shall make withdrawals from the Owner Trust
Accounts from time to time, in the amounts and for the purposes set forth
in this Indenture.
On the Closing Date, the Issuer shall deposit in the Owner
Trust Spread Account the amount received from the Depositor pursuant to
subsection 2.1(a) of the Deposit and Administration Agreement. Funds on
deposit in the Owner Trust Spread Account shall be invested at the
direction of the Administrator by the Indenture Trustee in Permitted
Investments. On each Transfer Date, after all deposits to and withdrawals
from the Owner Trust Spread Account, such amounts shall be invested in
Permitted Investments maturing on the next succeeding Transfer Date, or
on the Closing Date in Permitted Investments maturing on the first
Transfer Date. On each Transfer Date, the Indenture Trustee, acting at
the Administrator's request, shall transfer Investment Earnings from the
Owner Trust Spread Account to the Note Distribution Account to the extent
required to pay the Class C Note Interest Requirement on the related
Payment Date pursuant to subsection 2.7(a)(iii). The Indenture Trustee
shall cause such Permitted Investments to be held in such manner as to
give the Indenture Trustee "control" (as such term is defined in the
Section 8-106 of the New York UCC) over such Permitted Investments. No
Permitted Investment shall be disposed of prior to its maturity. The
Securities Intermediary shall comply with entitlement orders issued by
the Indenture Trustee without further consent by the Issuer.
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The Required Owner Trust Account Amount shall be adjusted on
each Transfer Date until the amount required is on deposit in the Owner
Trust Spread Account; provided, however, that the Required Owner Trust
Spread Account Amount shall not be adjusted downward until at least three
months have elapsed since the first month for which an increase was
required. To the extent so instructed by the Administrator on any
Transfer Date, the Indenture Trustee shall, if the amount on deposit in
the Owner Trust Spread Account is greater than the Required Owner Trust
Spread Account Amount for such Transfer Date, pay the amount of such
excess to the Certificateholder.
SECTION 8.3. Owner Trust Spread Account Amount Increase. Upon
the occurrence of the Pay Out Event (other than as a result of an Event
of Default), the Required Owner Trust Spread Account Amount shall
automatically be increased to 4.0% of the initial Note Initial Principal
Balance. If an Event of Default pursuant to subsection 5.01(c), (d) or
(e) has occurred and is continuing, the Indenture Trustee may by written
notice, or shall upon written notice from Holders of at least 66 2/3% of
the Outstanding Amount of the Notes to the Administrator, increase the
Required Owner Trust Spread Account Amount to 4.0% of the Initial
Invested Amount. If an Event of Default described in subsection 5.01(a)
or (b) has occurred and is continuing, the Required Owner Trust Spread
Account Amount, with respect to any Transfer Date, shall automatically be
increased to an amount equal to the sum of (a) the amount on deposit in
the Owner Trust Spread Account on such Transfer Date plus (b) the
Available Amount of such Transfer Date after giving effect to the
applications described in subsections 2.7(a)(i) through (vi); provided,
however, that, if upon the occurrence of an Event of Default described in
Section 5.1(a) of this Indenture the maturity of the Notes is not
accelerated pursuant to Section 5.2 of this Indenture, the increase in
the Required Owner Trust Spread Account Amount, for any Transfer Date,
shall be limited to an amount equal to the Class C Note Principal
Balance.
SECTION 8.4. General Provisions Regarding Owner Trust Spread
Account. (a) So long as the Notes have not been accelerated pursuant to
Section 5.2, all or a portion of the funds in the Owner Trust Spread
Account shall be invested in Permitted Investments and reinvested by the
Indenture Trustee upon Issuer Order (which Issuer Order may be upon
direction of the Administrator). All income or other gain (net of losses
and investment expenses) from investments of moneys deposited in the
Owner Trust Spread Account shall be applied, as directed by the
Administrator by an Issuer Order, (a) to the extent available, to pay the
Class C Note Interest Requirement and (b) to the extent of any remaining
investment proceeds, to increase the amount on deposit on the Owner Trust
Spread Account. Such Issuer Order shall not direct the Indenture Trustee
to make any investment of any funds or to sell any investment held in the
Owner Trust Spread Account unless the security interest granted and
perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, and, in connection with any
direction to the Indenture Trustee to make any such investment or sale,
if requested by the Indenture Trustee, the Issuer shall deliver to the
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Indenture Trustee an Opinion of Counsel, acceptable to the Indenture
Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in the Owner
Trust Spread Account 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 as principal obligor
and not as trustee, in accordance with their terms.
(c) If (i) the Administrator shall have failed to give
investment directions for any funds on deposit in the Owner Trust Spread
Account to the Indenture Trustee by 11:00 a.m. New York City time (or
such other time as may be agreed by the Administrator and the Indenture
Trustee) on any Business Day, or (ii) a Default or Event of Default shall
have occurred and be continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to Section 5.2, or,
if such Notes shall have been declared due and payable following an Event
of Default, amounts collected or receivable from the Owner Trust Estate
are being applied in accordance with Section 5.5 as if there had not been
such a declaration, then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in the Owner Trust Spread
Account in one or more Permitted Investments. The Indenture Trustee shall
not be liable for losses in respect of such investments in Permitted
Investments that comply with the requirements of the Basic Documents
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 as principal obligor and not as trustee, in
accordance with their terms.
SECTION 8.5. Release of Owner Trust Estate. (a) The
Indenture Trustee shall, when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of
this Indenture, or convey the Indenture Trustee's interest in the same,
in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article VIII shall
be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding, release any remaining portion of the Owner Trust
Estate that secured the Notes from the lien of this Indenture and release
to the Issuer or any other Person entitled thereto any funds then on
deposit in the Note Distribution Account. The Indenture Trustee shall
release property from the lien of this Indenture pursuant to this Section
8.5(b) only upon receipt of an Issuer Request accompanied by an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and
314(d)(1) meeting the applicable requirements of Section 11.1.
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SECTION 8.6. Opinion of Counsel. The Indenture Trustee shall
receive at least seven days' notice when requested by the Issuer to take
any action pursuant to Section 8.5(a), accompanied by copies of any
instruments involved, and the Indenture Trustee may also require as a
condition of such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any
such action, outlining the steps required to complete the same, and
concluding that all such action will not materially and adversely impair
the security for the Notes or the rights of the Noteholders; provided,
however that such Opinion of Counsel shall not be required to express an
opinion as to the fair value of the Owner Trust Estate. Counsel rendering
any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to
the Indenture Trustee in connection with any such action.
SECTION 8.7. Treatment as Financial Assets. Each item of
property (whether investment property, financial asset, security,
instrument or cash) credited to the Owner Trust Accounts shall be treated
as a financial asset. The Owner Trust Accounts shall be governed by the
law of the State of New York and New York shall be the Securities
Intermediary jurisdiction.
SECTION 8.8. Powers Coupled With an Interest. The rights and
powers granted in the Article 8 to the Indenture Trustee have been
granted in order to perfect its security interest in the Owner Trust
Account, are powers coupled with an interest and will be affected neither
by the bankruptcy or insolvency of the Issuer nor by the lapse of time.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders. Without the consent of the Holders of any Notes but with
prior notice to the Note Rating Agencies by the Issuer, when authorized
by an Issuer Request, the Issuer and the Indenture Trustee at any time
and from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act
as in force at the date of the execution thereof), in form satisfactory
to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained;
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(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not materially and
adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this Indenture
as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Issuer and the Indenture Trustee shall not enter into any indenture
supplemental hereto if such indenture would cause either (x) the Issuer
or the Master Trust to be classified as an association or a publicly
traded partnership taxable as a corporation for United States federal
income tax purposes or (y) a taxable event that could cause the
beneficial owner of any Outstanding Amount of Notes to recognize gain or
loss for such purposes.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein contained.
SECTION 9.2. Supplemental Indentures with Consent of the
Noteholders. The Issuer and the Indenture Trustee, when authorized by
the Issuer, also may, with prior notice to the Note Rating Agencies and
with the consent of the Holders of a majority of the Outstanding Amount
of the Notes, by Act of such Holders delivered to the Issuer and the
Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Note affected thereby:
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(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof,
the Note Rate thereon or the Redemption Price with respect thereto,
change the provision of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Owner Trust
Estate to payment of principal of or interest on the Notes, or change
any place of payment where, or the coin or currency in which, any
Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case
of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with the provisions of this
Indenture or defaults hereunder and their consequences provided for
in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to sell or liquidate
the Owner Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or any of the other Basic Documents
cannot be modified or waived without the consent of the Holder of
each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Payment Date (including
the calculation of any of the individual components of such
calculation) or to affect the rights of the Holders of the Notes to
the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of
the Owner Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
The Indenture Trustee may determine whether any Notes would be
affected by any supplemental indenture and any such determination shall
be conclusive upon the Holders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee
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shall not be liable for any such determination made in good faith. Any
amendment, waiver or modification consented to by the Noteholders shall
not be effective unless each of the Note Rating Agencies has provided
confirmation to the Issuer and the Indenture Trustee that such amendment,
waiver or modification shall not result in the reduction or removal of
the rating of any Class of the Notes affected by such amendment, waiver
or modification.
It shall not be necessary for any Noteholders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Noteholders shall approve
the substance thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the
Indenture Trustee shall mail to the Holders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in
general terms the substance of such supplemental indenture. Any failure
of the Indenture Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions
hereof, this Indenture shall be and be deemed to be modified and amended
in accordance therewith with respect to the Notes affected thereby, and
the respective rights, limitations of rights, obligations, duties,
liabilities and immunities under this Indenture of the Indenture Trustee,
the Issuer and the Holders of the Notes shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture and the Notes affected thereby for
any and all purposes.
SECTION 9.4. Conformity with Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall comply in all respects with the TIA.
SECTION 9.5. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the
Indenture Trustee shall, bear a notation in form approved by the
Indenture Trustee as to any matter provided for in such supplemental
indenture. If the Issuer or the Indenture Trustee shall so require, new
Notes so modified as to conform, in the opinion of the Indenture Trustee
and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Indenture
Trustee in exchange for Outstanding Notes.
SECTION 9.6. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modifications
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thereby of the trusts created by this Indenture, the Indenture Trustee
shall be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Indenture
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1. Redemption. The Notes are subject to redemption
in whole, but not in part, at the direction of the Depositor, on any date
on which the Series Certificate is retransferred to the Transferor
pursuant to Section 4 of the Series Supplement. The Issuer shall furnish
each Note Rating Agency notice of such redemption. If the Notes are to be
redeemed pursuant to this Section 10.1, the Issuer shall furnish notice
of such redemption to the Indenture Trustee no later than fifteen (15)
Business Days prior to the Redemption Date, and the Issuer shall, on the
related Transfer Date, deposit with the Indenture Trustee in the Note
Distribution Account the Redemption Price of the Notes to be redeemed
whereupon all such Notes shall be due and payable on the Redemption Date
upon the furnishing of a notice complying with Section 10.2 to each
Holder of the Notes.
SECTION 10.2. Form of Redemption Notice. Notice of redemption
under Section 10.1 shall be given by the Indenture Trustee by facsimile
or by first-class mail, postage prepaid, transmitted or mailed prior to
the applicable Redemption Date to each Holder of the Notes, as of the
close of business on the Record Date preceding the applicable Redemption
Date, at such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such Payment
Date is not applicable and that payments shall be made only upon
presentation and surrender of such Notes and the place where such
Notes are to be surrendered for payment of the Redemption Price
(which shall be the office or agency to be maintained as provided in
Section 3.2);
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date; and
(v) the applicable CUSIP numbers for such Notes.
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Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure
to give notice of redemption, or any defect therein, to any Holder of any
Notes shall not impair or affect the validity of the redemption of any
other Note.
SECTION 10.3. Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by Section
10.2, on the Redemption Date become due and payable at the Redemption
Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemption Price for
any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc. (a)
Upon any application or request by the Issuer to the Indenture Trustee to
take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee: (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion
of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) (if
required by the TIA) an Independent Certificate from a firm of certified
public accountants or other experts meeting the applicable requirements
of this Section, except that, in the case of any such application or
request as to which the furnishing of such documents is specifically
required by any provision of this Indenture, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
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(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the lien
of this Indenture, the Issuer shall, in addition to any obligation
imposed in Section 11.1(a) or elsewhere in this Indenture, furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such deposit) to the Issuer of the Collateral or other
property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(i), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) and this
clause (ii), is 10% or more of the Outstanding Amount of the Notes,
but such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as
set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii), the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of
the property or securities and of all other property, as set forth in
the certificates required by clause (iii) and this clause (iv),
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of the Series Certificate as and to the extent permitted or
required by the Basic Documents and (B) make cash payments out of the
Owner Trust Accounts as and to the extent permitted or required by
the Basic Documents.
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SECTION 11.2. Form of Documents Delivered to the Indenture
Trustee. In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Administrator, the
Depositor or the Issuer, stating that the information with respect to
such factual matters is in the possession of the Administrator, the
Depositor or the Issuer, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever in this Indenture, in connection with any application,
certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document (x) as a condition of the granting of
such application, or (y) as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of
the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions
stated in such document shall in each case be conditions precedent to the
right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely
upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
SECTION 11.3. Actions of Noteholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by the Noteholders may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by an agent duly
appointed in writing; and except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee and, when required, to the Issuer
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or the Administrator. Such instrument or instruments (and the action or
actions embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Noteholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Indenture Trustee, the Issuer
and the Administrator, if made in the manner provided in this Section
11.3.
(b) The fact and date of the execution by any Noteholder of
any such instrument or writing may be proved in any reasonable manner
which the Indenture Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Noteholder shall bind every Holder of
every Note issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or
omitted to be done, by the Indenture Trustee, the Issuer or the
Administrator in reliance thereon, regardless of whether notation of such
action is made upon such Note.
(d) The Indenture Trustee may require such additional proof of
any matter referred to in this Section 11.3 as it shall deem necessary.
SECTION 11.4. Notices, etc., to the Indenture Trustee, the
Issuer, and Note Rating Agencies. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or other
documents provided or permitted by this Indenture to be made upon, given
or furnished to or filed with:
(a) The Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if personally delivered,
telefaxed or mailed certified mail, return receipt requested and shall be
deemed to have been duly given upon receipt by a Responsible Officer of
the Indenture Trustee at its Corporate Trust Office, or
(b) The Issuer by the Indenture Trustee or any Noteholder
shall be sufficient for every purpose hereunder if personally delivered
or mailed certified mail, return receipt to the Issuer addressed to:
Chase Credit Card Owner Trust 2000-3, in care of Wilmington Trust
Company, not in its individual capacity but solely as Owner Trustee for
the Chase Credit Card Owner Trust 2000-3, at Rodney Square North, 1100
North Market Street, Wilmington, DE 19890-0001, Attention: Corporate
Trust Administration or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer. The Issuer shall promptly
transmit any notice received by it from the Noteholders to the Indenture
Trustee.
Notices required to be given to the Note Rating Agencies by the
Issuer, the Indenture Trustee or the Owner Trustee shall be in writing,
personally delivered or mailed certified mail, return receipt requested
to (i) in the case of Moody's, at the following address: Moody's
Investors Service, 99 Church Street, New York, New York 10007, Attention:
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ABS Monitoring Group, (ii) in the case of Standard & Poor's, at the
following address: Standard & Poor's Ratings Services, 55 Water Street,
New York, New York 10041, Attention: Asset Backed Surveillance Department
and (iii) in the case of Fitch, at the following address: Fitch IBCA,
Inc., One State Street Plaza, New York, New York 10004; or as to each of
the foregoing, at such other address as shall be designated by written
notice to the other parties.
SECTION 11.5. Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class, postage prepaid to each Noteholder
affected by such event, at his address as it appears on the Note
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case
where notice to Noteholders is given by mail, neither the failure to mail
such notice nor any defect in any notice so mailed to any particular
Noteholder shall affect the sufficiency of such notice with respect to
other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Noteholders shall be
filed with the Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a
waiver.
In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to the Noteholders when such
notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be satisfactory
to the Indenture Trustee shall be deemed to be a sufficient giving of
such notice.
Where this Indenture provides for notice to the Note Rating
Agencies, failure to give such notice shall not affect any other right or
obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6. Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to
the contrary, the Issuer may enter into any agreement with any Holder of
a Note providing for a method of payment, or notice by the Indenture
Trustee or any Paying Agent to such Holder that is different from the
methods provided for in this Indenture for such payments or notices,
provided that such methods are reasonable and consented to by the
Indenture Trustee (which consent shall not be unreasonably withheld). The
Issuer will furnish to the Indenture Trustee a copy of each such
agreement, and the Indenture Trustee will cause payments to be made and
notices to be given in accordance with such agreements.
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SECTION 11.7. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision
hereof that is required to be included in this Indenture by any of the
provisions of the TIA, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a part
of and govern this Indenture, whether or not physically contained herein.
SECTION 11.8. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9. Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns. All agreements of the Indenture Trustee in this
Indenture shall bind its successors.
SECTION 11.10. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall
not be affected or impaired thereby.
SECTION 11.11. Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and (only
to the extent expressly provided herein) Chase, the Noteholders, any
other party secured hereunder, and any other person with an ownership
interest in any part of the Owner Trust Estate, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
date on which nominally due, and no interest shall accrue for the period
from and after any such nominal date.
SECTION 11.13. GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 11.14. Counterparts. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to
be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION 11.15. Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied
by an Opinion of Counsel (which may be counsel to the Indenture Trustee
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or any other counsel reasonably acceptable to the Indenture Trustee) to
the effect that such recording is necessary either for the protection of
the Noteholders or any other person secured hereunder or for the
enforcement of any right or remedy granted to the Indenture Trustee under
this Indenture or to satisfy any provision of the TIA.
SECTION 11.16. Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer,
the Owner Trustee or the Indenture Trustee on the Notes or under this
Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Depositor, the Administrator, the
Transferor, the Servicer, the Indenture Trustee or the Owner Trustee in
its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee
in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Articles IV, V, VI and VII of the Trust
Agreement.
SECTION 11.17. No Petition. Notwithstanding any prior
termination of this Indenture, the Indenture Trustee and each Noteholder
or Note Owner, by its acceptance of a Note or beneficial interest in a
Note, as the case may be, hereby covenants that (a) they, shall not at
any time with respect to the Issuer or the Master Trust, acquiesce,
petition or otherwise invoke or cause the Issuer or the Master Trust to
invoke the process of any court or government authority for the purpose
of commencing or sustaining a case against the Issuer or the Master Trust
under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or the
Master Trust or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuer or the Master
Trust, (b) any claim that they may have at any time against the corpus of
the Master Trust that they may seek to enforce against the corpus of the
Master Trust, shall be subordinate to the payment in full, including
post-petition interest, in the event that the Master Trust becomes a
debtor or debtor in possession in a case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in
effect or otherwise subject to any insolvency, reorganization,
liquidation, rehabilitation or other similar proceedings, of the claims
of the holders of any securities of the Master Trust and the holders of
any other notes, bonds, contracts or other obligations that are related
-75-
to the Master Trust and (c) they hereby irrevocably make the election
afforded by Title 11 United States Code Section 1111(b)(1)(A)(i) to
secured creditors to receive the treatment afforded by Title 11 United
State Code Section 1111(b)(2) with respect to any secured claim that they
may have at any time against the Issuer or the Master Trust.
SECTION 11.18. Inspection. The Issuer agrees that, on
reasonable prior notice, it will permit any representative of the
Indenture Trustee, during the Issuer's normal business hours, to examine
all the books of account, records, reports, and other papers of the
Issuer, to make copies and extracts therefrom, to cause such books to be
audited by Independent certified public accountants, and to discuss the
Issuer's affairs, finances and accounts with the Issuer's officers,
employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The
Indenture Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential
treatment are unavailing) and except to the extent that the Indenture
Trustee may reasonably determine that such disclosure is consistent with
its Obligations hereunder.
SECTION 11.19. Tax Treatment. The Issuer intends that the
Notes will be treated as debt of the Certificateholder for all United
States tax purposes. Each Noteholder, by acceptance of its Note, and each
holder of a beneficial interest in a Note, by the acquisition of a
beneficial interest therein, agree to treat the Notes as indebtedness of
the Certificateholder for all United States tax purposes.
-76-
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above
written.
WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Owner Trustee for Chase
Credit Card Owner Trust 2000-3
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK
solely in its capacities as Indenture
Trustee, Securities Intermediary and
Transfer Agent
By:
------------------------------
Name:
Title:
-77-
EXHIBIT A
FORM OF CLASS A NOTE
REGISTERED $______________<F3>
No. A-_____ CUSIP NO. 16151RAK9
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CHASE CREDIT CARD OWNER TRUST 2000-3
CLASS A FLOATING RATE ASSET BACKED NOTES
Chase Credit Card Owner Trust 2000-3, a common law trust
organized and existing under the laws of the State of Delaware (including
any successor, the "Issuer"), for value received, hereby promises to pay
to CEDE & CO., or its registered assigns, the principal sum of ______
DOLLARS ($________), partially payable on each applicable Payment Date in
an amount equal to the result obtained by multiplying (i) a fraction, the
numerator of which is $__________ and the denominator of which is
$___________ by (ii) the aggregate amount, if any, payable from the Note
Distribution Account in respect of principal on the Class A Notes
pursuant to Section 3.1 of the Indenture on such Payment Date; provided
that the entire unpaid principal amount of this Note shall be due and
payable on the January 2008 Payment Date (which is January 15, 2008). The
Issuer will pay interest on this Note at the rate per annum shown above,
on each Payment Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), subject to certain
limitations contained in Sections 2.7, 3.1 and 8.2 of the Indenture.
Interest on this Note will accrue for each Payment Date from the most
recent Payment Date on which interest has been paid to but excluding the
then current Payment Date or, if no interest has yet been paid,
from October 3, 2000. Interest will be computed on the basis of the
actual number of days elapsed in a 360-day year (which is 43 days in the
case of the Note Interest Period preceding the November 15, 2000 Payment
Date). Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
<F3> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
A-1
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provided above and then
to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated:
----------, ---
CHASE CREDIT CARD OWNER TRUST 2000-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within mentioned Indenture.
Dated:
-------- --, ----
THE BANK OF NEW YORK
not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------
Authorized Signatory
A-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A Floating Rate Asset Backed Notes
(herein called the "Class A Notes" or the "Notes"), all issued under an
Indenture dated as of October 3, 2000, (such Indenture, as supplemented
or amended, is herein called the "Indenture"), between the Issuer and The
Bank of New York, not in its individual capacity but solely as indenture
trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture) and as securities intermediary, to
which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the
Notes. The Notes are subject to all terms of the Indenture. All terms
used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Class A Notes, the Class B Notes and the Class C Notes are
and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A Note Interest Rate to the extent lawful. Each
Holder or Note Owner, by acceptance of a Note, or, in the case of a Note
Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and
the Owner Trustee have no such obligations in their individual capacity)
and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity.
It is the intent of the Depositor, the Administrator, the
Issuer, the Noteholders, the Note Owners and Chase USA, that the Notes
will be classified as indebtedness of the Issuer for all United States
tax purposes. The Noteholders, by acceptance of a Note, agree to treat,
and to take no action inconsistent with the treatment of, the Notes as
indebtedness of the Issuer for such tax purposes.
Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
A-4
agrees that they will not at any time institute against the Issuer, or
join in any institution against 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, the
Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither Wilmington Trust
Company in its individual capacity, any owner of a beneficial interest in
the Issuer, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees, successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform, any
of the covenants, obligations or indemnifications contained in this
Note or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Issuer for the
sole purpose of binding the interests of the Owner Trustee in the assets
of the Issuer. The Holder of this Note by the acceptance hereof agrees
that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided that nothing contained herein shall be taken to prevent recourse
to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or
in this Note.
A-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- -----------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- -----------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
-------------- -------------------------------------------<F4>
Signature Guaranteed:
<F4> NOTE: The signature o this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular without alteration, enlargement
or any change whatsoever.
A-6
EXHIBIT B
FORM OF CLASS B NOTE
REGISTERED $__________<F5>
No. B-_____ CUSIP NO. 16151RAL7
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE
AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE CREDIT CARD OWNER TRUST 2000-3
CLASS B FLOATING RATE ASSET BACKED NOTES
Chase Credit Card Owner Trust 2000-3, a common law trust
organized and existing under the laws of the State of Delaware (including
any successor, the "Issuer"), for value received, hereby promises to pay
to CEDE & CO., or its registered assigns, the principal sum of
___________ DOLLARS ($_________), partially payable on each applicable
Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction, the numerator of which is $________ and the denominator of
which is $________ by the (ii) the aggregate amount, if any, payable from
the Note Distribution Account in respect of principal on the Class B
Notes pursuant to Section 3.1 of the Indenture on such Payment Date;
provided that the entire unpaid principal amount of this Note shall be
due and payable on the January 2008 Payment Date (which is January 15,
2008). No payments of principal of the Class B Notes will be made until
the principal of the Class A Notes has been paid in full. The Issuer will
pay interest on this Note at the rate per annum shown above, on each
Payment Date until the principal of this Note is paid or made available
for payment, on the principal amount of this Note outstanding on the
receding. Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations
contained in Sections 2.7, 3.1 and 8.2 of the Indenture.
Interest on this Note will accrue for each Payment Date from
the most recent Payment Date on which interest has been paid to but
excluding the then current Payment Date or, if no interest has yet been
paid, from October 3, 2000. Interest will be computed on the basis of the
actual number of days elapsed in a 360-day year (which is 43 days in the
case of the Note Interest Period preceding the November 15, 2000 Payment
<F5> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
B-1
Date). Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provided above and then
to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated:
----------- --, ----
CHASE CREDIT CARD OWNER TRUST 2000-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Dated:
---------- --, ----
B-2
THE BANK OF NEW YORK
not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------
Authorized Signatory
B-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class B Floating Rate Asset Backed Notes
(herein called the "Class B Notes" or the "Notes"), all issued under an
Indenture dated as of October 3, 2000 (such Indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and The
Bank of New York, not in its individual capacity but solely as trustee
(the "Indenture Trustee", which term includes any successor Indenture
Trustee under the Indenture) and as securities intermediary, to
which indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the
Notes. The Notes are subject to all terms of the Indenture. All terms
used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Class B Notes, and the Class A Notes and Class C Notes are
and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class B Note Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against
(i) the Indenture Trustee or the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of the
Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Indenture Trustee or
the Owner Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution
or failure to pay any installment or call owing to such entity.
It is the intent of the Depositor, the Administrator, the Note
Owners, the Issuer, the Noteholders and Chase USA that the Notes will be
classified as indebtedness of the Issuer for all United States tax
purposes. The Noteholders, by acceptance of a Note, agree to treat, and
to take no action inconsistent with the treatment of, the Notes as
indebtedness of the Issuer for such tax purposes.
B-4
Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that they will not at any time institute against the Issuer, or
join in any institution against 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, the
Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither Wilmington Trust
Company in its individual capacity, any owner of a beneficial interest in
the Issuer, nor any of their respective partners, beneficiaries, agents,
officers, directors, employees, successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to perform,
any of the covenants, obligations or indemnifications contained in this
Note or the Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Issuer for the
sole purpose of binding the interests of the Owner Trustee in the assets
of the Issuer. The Holder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under the Indenture, the Holder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
B-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- -------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- -------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
------------------ ---------------------------------------<F6>
Signature Guaranteed:
-----------------------------------------
<F6> NOTE: The signature of this assignment must correspond with the
name of the registered owner as it appears on the face of the
within Note in every particular without alteration, enlargement
or any change whatsoever.
B-6
EXHIBIT C
FORM OF CLASS C NOTE
REGISTERED $__________<F7>
No. C-_____ CUSIP NO. 16151RAM5
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE
AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CHASE CREDIT CARD OWNER TRUST 2000-3
CLASS C FLOATING RATE ASSET BACKED NOTES
Chase Credit Card Owner Trust 2000-3, a common law trust
organized and existing under the laws of the State of Delaware (including
any successor, the "Issuer"), for value received, hereby promises to pay
to CEDE & CO., or its registered assigns, the principal sum of
_____________ DOLLARS ($________), partially payable on each applicable
Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction, the numerator of which is $________ and the denominator of
which is $________ by the (ii) the aggregate amount, if any, payable from
the Note Distribution Account in respect of principal on the Class C
Notes pursuant to Section 3.1 of the Indenture on such Payment Date;
provided that the entire unpaid principal amount of this Note shall be
due and payable on the January 2008 Payment Date (which is January 15,
2008). No payments of principal of the Class C Notes will be made until
the principal of the Class A Notes and the Class B Notes have been paid
in full. The Issuer will pay interest on this Note at the rate per annum
described in the Indenture, on each Payment Date until the principal of
this Note is paid or made available for payment, on the principal amount
of this. Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date),
subject to certain limitations contained in Sections 2.7, 3.1 and 8.2 of
the Indenture. Interest on this Note will accrue for each Payment Date
from the most recent Payment Date on which interest has been paid to but
excluding the then current Payment Date or, if no interest has yet been
paid, from October 3, 2000. Interest will be computed on the basis of the
actual number of days elapsed in a 360-day year (which is 43 days in the
<F7> Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
C-1
case of the Note Interest Period preceding the November 15, 2000 Payment
Date). Such principal of and interest on this Note shall be paid in the
manner specified in the Indenture.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provided above and then
to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof which shall have the same effect as though
fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated:
----------- --, ----
CHASE CREDIT CARD OWNER TRUST 2000-3
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Dated:
----------- --, ----
THE BANK OF NEW YORK
not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------
Authorized Signatory
C-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class C Floating Rate Asset Backed Notes
(herein called the "Class C Notes" or the "Notes"), all issued under an
Indenture dated as of October 3, 2000 (such Indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and The
Bank of New York, not in its individual capacity but solely as trustee
(the "Indenture Trustee", which term includes any successor Indenture
Trustee under the Indenture) and as securities intermediary, to which
Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder
of the Issuer, the Indenture Trustee and the Holders of the Notes. The Notes
are subject to all terms of the Indenture. All terms used in this Note that
are not otherwise defined herein and that are defined in the Indenture shall
have the meanings assigned to them in or pursuant to the Indenture.
The Class C Notes, the Class A Notes and the Class B Notes are
and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class C Note Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection herewith or therewith, against
(i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent
of the Indenture Trustee or the Owner Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer, the Indenture Trustee
or the Owner Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution
or failure to pay any installment or call owing to such entity.
It is the intent of the Depositor, the Administrator, the Note
Owners, the Issuer, the Noteholders and Chase USA that, the Notes will be
classified as indebtedness of the Issuer for all United States tax
purposes. The Noteholders, by acceptance of a Note, agree to treat, and
to take no action inconsistent with the treatment of, the Notes as
indebtedness of the Issuer for such tax purposes.
C-4
Each Noteholder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that they will not at any time institute against the Issuer, or
join in any institution against 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, the
Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and
remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither Wilmington Trust
Company, in its individual capacity, any owner of a beneficial interest
in the Issuer, nor any of their respective partners, beneficiaries,
agents, officers, directors, employees, successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on, or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained
in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Issuer
for the sole purpose of binding the interests of the Owner Trustee in the
assets of the Issuer. The Holder of this Note by the acceptance
hereof agrees that, except as expressly provided in the Basic Documents,
in the case of an Event of Default under the Indenture, the Holder shall
have no claim against any of the foregoing for any deficiency, loss or
claim therefrom; provided that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
C-5
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
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Signature Guaranteed:
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<F8> NOTE: The signature to this assignment must correspond with
the name of the registered owner as it appears on the face of
the within Note in every particular without alteration,
enlargement or any change whatsoever.
C-6
EXHIBIT D
FORM OF NOTE DEPOSITORY AGREEMENT
D-1