EXHIBIT 10.2
CIBC MELLON TRUST COMPANY
in its capacity as Trustee of
AMERICREDIT CANADA AUTOMOBILE RECEIVABLES TRUST
and
BNY TRUST COMPANY OF CANADA
as Indenture Trustee
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SERIES C2002-1 SUPPLEMENTAL INDENTURE
November 22, 2002
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OSLER, HOSKIN & HARCOURT LLP
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION..........................................................................................1
1.1 Definitions....................................................................................1
1.2 Interpretation.................................................................................5
1.3 Extended Meanings..............................................................................5
1.4 Headings.......................................................................................5
1.5 References to Sections, Articles and Exhibits..................................................5
1.6 Proper Law of Series Supplement................................................................5
1.7 Invalidity of Provisions.......................................................................6
1.8 Computation of Time Periods....................................................................6
1.9 Non-Business Days..............................................................................6
1.10 Accounting Principles..........................................................................6
1.11 Currency.......................................................................................6
ARTICLE 2
PRINCIPAL TERMS.........................................................................................7
2.1 Creation and Designation of Notes and Class VPN Loans; Principal Terms.........................7
2.2 Class VPN Loans...............................................................................10
2.3 Interest on the Series C2002-1 Debt Obligations...............................................10
2.4 Principal Payments on the Series C2002-1 Debt Obligations.....................................12
ARTICLE 3
SERIES ACCOUNTS; PAYMENTS..............................................................................13
3.1 Series Accounts; Payments.....................................................................13
3.2 Event of Default; Non-Sequential Amortization Period..........................................17
3.3 General Provisions Regarding Series Accounts..................................................19
ARTICLE 4
REDEMPTION OF Series C2002-1 Debt Obligations..........................................................20
4.1 Redemption....................................................................................20
4.2 Form Of Redemption Notice.....................................................................20
4.3 Series C2002-1 Debt Obligations Payable On Redemption Date....................................21
ARTICLE 5
RELATED EVENTS OF DEFAULT..............................................................................21
5.1 Events of Default.............................................................................21
5.2 Acceleration of Series C2002-1 Debt Obligations...............................................22
ARTICLE 6
SUPPLEMENTAL INDENTURES................................................................................22
6.1 Supplemental Indentures Without Consent Of Series C2002-1 Debtholders.........................22
6.2 Supplemental Indentures With Consent of Series C2002-1 Debtholders............................23
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 7
GENERAL................................................................................................25
7.1 Confirmation of Indenture.....................................................................25
7.2 Obligations of the Trust......................................................................25
7.3 Acceptance....................................................................................25
7.4 Appointment of Mandatory......................................................................25
7.5 Limitation of Liability of Trustee............................................................26
7.6 Execution in Counterparts.....................................................................26
7.7 Formal Date...................................................................................26
7.8 Delivery of Executed Copies...................................................................27
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SERIES C2002-1 SUPPLEMENTAL INDENTURE made as of November 22, 2002 between
CIBC MELLON TRUST COMPANY, in its capacity as trustee (in such capacity,
together with its successors and assigns in such capacity, the "Trustee") of
AMERICREDIT CANADA AUTOMOBILE RECEIVABLES TRUST (the "Trust"), and BNY TRUST
COMPANY OF CANADA, as indenture trustee (in such capacity, together with its
successors and assigns in such capacity, the "Indenture Trustee").
WHEREAS pursuant to the Indenture, provision was made for the issuance of
Notes from time to time;
AND WHEREAS pursuant to Section 2.3 of the Indenture, the Notes may, at the
election of the Trust, be issued in one or more Series by the execution and
delivery of a Series Supplement, which Series may be comprised of one or more
Classes and may include Loans;
AND WHEREAS the Trust has authorized the issuance of a Series of Medium
Term Notes to be designated "AmeriCredit Canada Automobile Receivables-Backed
Notes, Series C2002-1" (the "Series C2002-1 Notes");
AND WHEREAS the parties are executing and delivering this Series Supplement
to provide for the creation and issuance of the Series C2002-1 Notes and the
creation of the Class VPN Loans (as defined herein);
AND WHEREAS the foregoing recitals and statements of fact are made by the
Trust and not by the Indenture Trustee;
NOW THEREFORE THIS SERIES SUPPLEMENT WITNESSES and it is hereby covenanted,
agreed and declared as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS.
All initial capitalized terms used in this Series Supplement that are
defined in the Indenture or the Sale and Servicing Agreement, either directly or
by reference therein, shall have the meanings specified therefor in the
Indenture and the Sale and Servicing Agreement, as the case may be, except to
the extent that, subject to Section 1.2, such terms are defined or modified in
this Series Supplement or the context otherwise requires.
In addition, whenever used in this Series Supplement or in the Indenture
with respect to the Series C2002-1 Note Obligations, the following terms shall
have the following meanings, respectively:
(a) "Basic Documents" means the Declaration of Trust, the Sale and
Servicing Agreement, the Limited Guarantee, the Indenture, this Series
Supplement, the Administration Agreement, the Letter of
Representations with respect to the Offered Notes, the Underwriting
Agreement, each Class VPN Loan Agreement, the Class VPN Swap, the
Class A-1 Swap, the Custodian Agreement and other documents and
certificates delivered in connection therewith.
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(b) "Class A Notes" means the Class A-1 Notes and Class A-2 Notes.
(c) "Class A-1 Notes" means the Class of Series C2002-1 Notes authorized
and created pursuant to Article 2 and designated as the Class A-1
Notes;
(d) "Class A-1 Swap" means, collectively, (i) the ISDA Master Agreement,
including all schedules and confirmations related thereto, between the
Class A-1 Swap Counterparty and the Trust relating to interest payable
on the Class A-1 Notes, and (ii) the guarantee made by Merrill Lynch &
Co. in favour of the Trust guaranteeing the obligations of the Class
A-1 Swap Counterparty, in each case as in effect on the Closing Date,
and as the same may be amended, supplemented, renewed, extended or
replaced from time to time.
(e) "Class A-1 Swap Counterparty" means Merrill Lynch Capital Services,
Inc., as swap counterparty under the Class A-1 Swap, or any successor
or replacement Class A-1 Swap Counterparty from time to time under the
Class A-1Swap.
(f) "Class A-2 Notes" means the Class of Series C2002-1 Notes authorized
and created pursuant to Article 2 and designated as the Class A-2
Notes;
(g) "Class B Notes" means the Class of Series C2002-1 Notes authorized and
created pursuant to Article 2 and designated as the Class B Notes.
(h) "Class C Notes" means the Class of Series C2002-1 Notes authorized and
created pursuant to Article 2 and designated as the Class C Notes.
(i) "Class D Notes" means the Class of Series C2002-1 Notes authorized and
created pursuant to Article 2 and designated as the Class D Notes.
(j) "Class VPN Lender" means the lender under a Class VPN Loan Agreement
advancing funds to the Issuer to fund, in part, the payment of the
Purchase Price and/or to refinance the Class A Notes.
(k) "Class VPN Loan Agreement" means a Liquidity Loan Agreement entered
into between the Trust and any Class VPN Lender, including the Class
VPN Loan Agreement dated as of November 22, 2002 between the Issuer,
the Seller and The Trust Company of Bank of Montreal in its capacity
as trustee of Gemini Trust, a copy of which is attached hereto as
Exhibit E.
(l) "Class VPN Swap" (i) the ISDA Master Agreement, including all
schedules and confirmations related thereto, between the Class VPN
Swap Counterparty and the Trust relating to interest payable on the
Class VPN Loans, and (ii) the guarantee made by Merrill Lynch & Co. in
favour of the Trust guaranteeing the obligations of the Class VPN Swap
Counterparty, in each case as in effect on the Closing Date, and as
the same may be amended, supplemented, renewed, extended or replaced
from time to time.
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(m) "Class VPN Swap Counterparty" means Merrill Lynch Capital Services,
Inc., as swap counterparty under the Class VPN Swap, or any successor
or replacement Class VPN Swap Counterparty from time to time under the
Class VPN Swap.
(n) "Collateral" and "Related Collateral" for the Series C2002-1 Notes and
the other Related Obligations means:
(i) the Receivables, including all documents constituting
chattel paper included therewith, and all obligations of the
Obligors thereunder, including all moneys paid thereunder
after the related Cut-Off Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest
of the Trust in the Financed Vehicles;
(iii) all rights under any Service Contracts on the related
Financed Vehicles;
(iv) any proceeds with respect to the Receivables from claims on
insurance policies covering Financed Vehicles or Obligors;
(v) the Series Accounts and all monies, funds and Eligible
Investments on deposit in or credited to the Series Accounts
from time to time and all rights of the Trust therein
(including all income thereon and proceeds thereof);
(vi) the Trust's rights and benefits, but none of its obligations
or burdens, under the Swaps;
(vii) all items contained in the Receivable Files and any and all
other documents that the Seller or the Servicer keeps on
file in accordance with its customary procedures relating to
the Receivables, the Obligors or the Financed Vehicles;
(viii) the Trust's rights and benefits, but none of its obligations
or burdens, under the Sale and Servicing Agreement, the
Limited Guarantee, the Underwriting Agreement, each Class
VPN Loan Agreement and the Custodian Agreement (including
the delivery requirements, representations and warranties
and the cure and repurchase obligations of the Seller under
the Sale and Servicing Agreement) and the other documents
and certificates delivered thereunder or in connection
therewith; and
(ix) 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 and
nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, cheques, deposit accounts,
insurance proceeds, condemnation awards, rights to
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payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any
time constitute all or part of or are included in the
proceeds of any of the foregoing.
(o) "Collections" and "Related Collections" means, for any Collection
Period or Monthly Payment Date and at any time, all amounts
constituting or included in the Available Funds or the Total Available
Funds for any such period, date or time.
(p) "Indenture" means the Indenture made as of September 30, 2002 among
the Trust and the Indenture Trustee, as amended, modified, renewed,
restated or replaced from time to time.
(q) "Letter of Representations" means the Letter of Representations to be
entered into by the Trust and the Clearing Agency with respect to each
Class of the Offered Notes in substantially the form of Exhibit F.
(r) "Offered Notes" means the Class A Notes, Class B Notes and Class C
Notes.
(s) "Paying Agent" means the Indenture Trustee, in its capacity as paying
agent under the Indenture, together with its successors and permitted
assigns in such capacity.
(t) "Rating Agency Condition" has, for the Series C2002-1 Debt
Obligations, the meaning specified in the Sale and Servicing
Agreement.
(u) "Redemption Price" means the unpaid principal amount of the Series
C2002-1 Debt Obligations to be redeemed, plus accrued and unpaid
interest thereon at the applicable Interest Rate to but excluding the
Redemption Date with respect thereto.
(v) "Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of November 15, 2002, among the Trust, Bank One, NA, the
Seller and the Servicer, as it may be amended, supplemented, modified,
restated, renewed or replaced from time to time.
(w) "Series Accounts" for the Series C2002-1 Debt Obligations and the
Related Obligations means the Collection Account, the Note
Distribution Account, the Reserve Account, the Accumulation Account,
the Pre-Funding Account, the Capitalized Interest Account and any
other Eligible Deposit Account established or maintained by or for the
benefit of the Trust or Indenture Trustee, the Series C2002-1
Debtholders and the Related Specified Creditors pursuant to the Basic
Documents.
(x) "Series C2002-1 Debtholders" means the Holders of the Series C2002-1
Debt Obligations.
(y) "Series C2002-1 Debt Obligations" means, collectively, the Series
C2002-1 Notes and the Class VPN Loans.
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(z) "Series C2002-1 Notes" means, collectively, the Notes created under
this Series Supplement consisting of the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes.
(aa) "Series Supplement" means this Series C2002-1 Supplemental Indenture,
together with the Schedules hereto, as amended, supplemented,
modified, renewed, restated or replaced from time to time, together
with all schedules hereto and the expressions "hereof", "herein",
"hereto", "hereunder", "hereby" and similar expressions refer to this
Series Supplement and not to any Article, Section, paragraph,
subparagraph or clause hereof.
(bb) "Swaps" means the Class VPN Swap and the Class A-1 Swap.
(cc) "Trust Indenture" means the Indenture as amended and supplemented by
this Series Supplement.
1.2 INTERPRETATION.
Subject to the next following sentences, this Series Supplement is
supplemental to the Indenture and the Indenture shall be read in conjunction
with this Series Supplement and all of the provisions of the Indenture shall
apply to and shall have effect in connection with this Series Supplement in the
same manner as if all of the provisions of the Indenture and of this Series
Supplement were contained in one instrument. If any terms of the Indenture are
inconsistent with the express terms hereof, the terms of the Indenture shall be,
solely in respect of the Series C2002-1 Debt Obligations and Related
Obligations, amended and supplemented so as to be consistent herewith. The
provisions of this Series Supplement are applicable only in respect of the
Series C2002-1 Debt Obligations and the Related Obligations and not the Notes or
Related Obligations of any other Series.
1.3 EXTENDED MEANINGS.
In this Series Supplement, words importing the singular number include the
plural and vice versa and words importing gender include all genders.
1.4 HEADINGS.
The table of contents does not form part of this Series Supplement. Article
and Section headings are not to be considered part of this Series Supplement,
are included solely for convenience of reference and do not define, limit or
enlarge the construction or interpretation hereof.
1.5 REFERENCES TO SECTIONS, ARTICLES AND EXHIBITS.
Unless otherwise provided, all references herein to Sections, Articles or
Exhibits are references to Sections, Articles and Exhibits of or to this Series
Supplement.
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1.6 PROPER LAW OF SERIES SUPPLEMENT.
This Series Supplement will be governed by the laws of the Province of
Ontario and the federal laws of Canada applicable therein.
1.7 INVALIDITY OF PROVISIONS.
Save and except for any provision or covenant contained herein which is
fundamental to the subject matter of this Series Supplement (including, without
limitation, those that relate to the payment of monies), the invalidity or
unenforceability of any provision or covenant hereof or herein contained will
not affect the validity or enforceability of any other provision or covenant
hereof or herein contained and any such invalid or unenforceable provision or
covenant will be deemed to be severable.
1.8 COMPUTATION OF TIME PERIODS.
In this Series Supplement, with respect to the computation of periods of
time from a specified date to a later specified date, unless otherwise expressly
stated, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding".
1.9 NON-BUSINESS DAYS.
Whenever any payment to be made hereunder shall be treated to be due, any
calculation is to be made or any other action to be taken hereunder shall be
stated to be required to be taken on a day other than a Business Day, such
payment shall be made, such calculation shall be made and such other action
shall be taken on the next succeeding Business Day and an extension of time
shall be included for such purposes.
Any payment made after 3:00 p.m. (Toronto time) on a Business Day shall be
deemed to be made on the next following Business Day.
1.10 ACCOUNTING PRINCIPLES.
Where the character or amount of any asset or liability or item of revenue
or expense is required to be determined, or any consolidation or other
accounting computation is required to be made for the purpose of this Series
Supplement, such determination or calculation shall, to the extent applicable
and except as otherwise specified herein or as otherwise agreed in writing by
the parties, be made in accordance with generally accepted accounting principles
applied on a consistent basis. Wherever in this Series Supplement reference is
made to generally accepted accounting principles, such reference shall be deemed
to be to the generally accepted accounting principles from time to time approved
by the Canadian Institute of Chartered Accountants, or any successor institute,
applicable as at the date on which such calculation is made or required to be
made in accordance with generally accepted accounting principles.
1.11 CURRENCY.
Unless stated otherwise, all amounts herein are stated in Canadian Dollars.
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ARTICLE 2
PRINCIPAL TERMS
2.1 CREATION AND DESIGNATION OF NOTES AND CLASS VPN LOANS; PRINCIPAL TERMS.
(a) Designation of Notes. There is hereby created a Series of Notes to be
issued pursuant to the Indenture and this Series Supplement to be
designated as the "AmeriCredit Canada Automobile Receivable-Backed
Notes, Series C2002-1". The Series C2002-1 Notes shall be issued in
five Classes of Notes, the "Class A-1 Notes", the "Class A-2 Notes",
the "Class B Notes", the "Class C Notes" and the "Class D Notes".
(b) Creation of Class VPN Loans. There shall also be authorized and
created, as part of such Series, Class VPN Loans on the terms and
conditions of this Series Supplement and the related Class VPN Loan
Agreements.
(c) Series Issuance Date. The Series Issuance Date for the Series C2002-1
Notes and the Initial Class VPN Loan shall be the Closing Date.
(d) Form of Notes. The Class A-1 Notes, Class A-2 Notes, Class B Notes,
Class C Notes and Class D Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the forms set
forth in Exhibits A-1, A-2, B, C and D, respectively, with such
appropriate insertions, omissions, substitutions and other variations
as are required or permitted by the Indenture and this Series
Supplement, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as
may, consistently herewith, be determined by the Responsible Officers
of the Trust executing such Series C2002-1 Notes, as evidenced by
their execution of the Series C2002-1 Notes. Any portion of the text
of any Series C2002-1 Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note.
(e) Definitive Series C2002-1 Notes. The Definitive Notes for the Offered
Notes, if issued, shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or
without steel engraved borders), in substantially the forms of the
Offered Notes set forth in the Exhibits hereto, all as determined by
the Responsible Officers of the Trust executing such Notes, as
evidenced by their execution of such Notes.
(f) Date of Series C2002-1 Notes. Each Series C2002-1 Note shall be dated
the date of its certification by the Indenture Trustee. The terms of
the Series C2002-1 Notes set forth in Exhibits A-1, A-2, B, C and D
are part of the terms of this Series Supplement.
(g) Interest Rates. The Interest Rate for each Class of Series C2002-1
Notes and for the Class VPN Loans shall be the applicable Interest
Rate for such Class and such Class VPN Loans. Interest on each Class
of Series C2002-1 Notes and the Class VPN Loans shall be calculated
and compounded in the manner and shall be payable on each Payment Date
for such Class as provided in the Sale and
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Servicing Agreement and this Series Supplement and, with respect to
the Class VPN Loans, in accordance with the Sale and Servicing
Agreement and the related Class VPN Loan Agreement.
(h) Initial Outstanding Amounts. On the Series Issuance Date, the
Indenture Trustee shall cause to be certified and delivered to or upon
the order of the Trust, Series C2002-1 Notes for original issue in the
aggregate principal amount of $209,400,000, comprised of (i) Class A-1
Notes in the aggregate principal amount of $36,437,000, (ii) Class A-2
Notes in the aggregate principal amount of $100,000,000, (iii) Class B
Notes in the aggregate principal amount of $22,688,000, (iv) Class C
Notes in the aggregate principal amount of $22,000,000, and (v) Class
D Notes in the aggregate principal amount of $28,875,000. The Initial
Class VPN Loan will be in the aggregate principal amount of
$65,000,000.
(i) Meaning of Outstanding. For the purposes of the definition of
Outstanding in the Indenture, amounts on deposit in the Accumulation
Account shall not be considered deposited with the Indenture Trustee
in trust for payment to the holders of Offered Notes of any Class
until such amounts are transferred to and deposited in the Note
Distribution Account in trust for the holders of Offered Notes of such
Class.
(j) Payment Dates. The Series C2002-1 Debt Obligations of each Class shall
have the Monthly Payment Dates, Payment Dates, Targeted Final Payment
Dates, Final Scheduled Payment Dates and Record Dates specified
therefor in the Sale and Servicing Agreement.
(k) Redemption. The Series C2002-1 Debt Obligations shall be redeemable in
accordance with the provisions of Article 4 of this Series Supplement
and Section 9.1 of the Sale and Servicing Agreement.
(l) Minimum Amounts. Subject to applicable securities laws, the Series
C2002-1 Notes of each Class shall be issued in minimum denominations
of $1,000 and integral multiples of $1,000; provided, however, that
one Series C2002-1 Note of each Class (including a Book-Entry Note)
may be issued in an odd amount or denomination.
(m) Paying Agent. The Paying Agent for the Series C2002-1 Debt Obligations
shall initially be the Indenture Trustee and its successors or
assigns.
(n) Rating Agencies. The Rating Agencies for the Series C2002-1 Debt
Obligations shall be DBRS, Standard & Poor's and Moody's.
(o) Series Accounts. The Series Accounts for the Series C2002-1 Debt
Obligations shall be the Series Accounts as defined in Article 1.
(p) Swaps. Each Swap shall be entered into pursuant to (i) the ISDA Master
Agreement to be executed by the Trust and Merrill Lynch Capital
Services, Inc. on the Closing Date in substantially the form of
Exhibit G hereto, (ii) in the case
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of the Class VPN Swap, the Confirmation to be executed by the Trust
and the Class VPN Swap Counterparty on the Closing Date in
substantially the form of Exhibit F hereto, and (iii) in the case of
the Class A-1 Swap, the Confirmation to be executed by the Trust and
the Class A-1 Swap Counterparty on the Closing Date in substantially
the form of Exhibit H hereto, and the Trust shall execute and deliver
such Basic Documents at the Closing in accordance with the
instructions of the Administrator.
(q) Letter of Representations for Book-Entry Offered Notes; Definitive
Class D Notes. The Clearing Agency Letter of Representations for the
Book-Entry Notes representing each Class of the Offered Notes shall be
the Letter of Representations which shall be executed and delivered by
the Trust to the Clearing Agency at the Closing. The Class D Notes
shall be in the form of Definitive Notes.
(r) Related Collateral. The Related Collateral for the Series C2002-1 Debt
Obligations and the other Related Obligations shall be the Collateral
as defined in Article 1.
(s) Security for Related Obligations Secured. The Related Collateral shall
be held as security for the due payment of the Series C2002-1 Debt
Obligations and the other Related Obligations alone, the Series
C2002-1 Debt Obligations and the other Related Obligations shall be
secured solely by the Related Collateral, recourse in respect of or
payment of the Series C2002-1 Debt Obligations and the other Related
Obligations shall be limited to the Related Collateral and no
Obligations other than the Series C2002-1 Debt Obligations and the
other Related Obligations shall have recourse to the Related
Collateral;
(t) Application of this Series Supplement. The terms of the Indenture are
amended, supplemented, modified, restated and replaced to the extent
applicable by the terms of this Series Supplement in respect of the
Series C2002-1 Debt Obligations in accordance with Section 1.2 hereof;
(u) Subordination. The Class B Notes will be subordinated to the Class A
Notes and the Class VPN Loans, the Class C Notes will be subordinated
to the Class A Notes, Class VPN Loans and Class B Notes, and Class D
Notes will be subordinated to the Class A Notes, Class VPN Loans,
Class B Notes and Class C Notes, in each case, to the extent described
herein and in the Sale and Servicing Agreement, upon the occurrence of
an Event of Default, the commencement of a Non-Sequential Amortization
Period or otherwise;
(v) Distribution of the Notes. The Offered Notes will be offered for sale
and distributed pursuant to the Prospectus and the Underwriting
Agreement. The Class D Notes will be sold pursuant to the Class D
Subscription Agreement. The Underwriting Agreement and Class D
Subscription Agreement shall be executed and delivered by the Trust in
such forms as the Administrator and the Seller shall present to the
Trust for execution at the Closing.
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2.2 CLASS VPN LOANS.
(a) The Trust may obtain Class VPN Loans in accordance with Section 2.8 of
the Sale and Servicing Agreement. The Trust shall execute and deliver
any Class VPN Loan Agreement complying with the terms and provisions
of this Series Supplement and the Sale and Servicing Agreement
presented to the Trust by the Servicer for execution in connection
with obtaining the advance of any Class VPN Loan. The Trust shall
deliver to the Indenture Trustee a copy of each Class VPN Loan
Agreement entered into by the Trust and a Class VPN Lender and shall
give the Indenture Trustee written notice of each Class VPN Loan
obtained by the Trust, specifying for each such Class VPN Loan:
(i) the aggregate principal amount of the Class VPN Loan and the date of
advance of such Class VPN Loan;
(ii) the Interest Rate for such Class VPN Loan; and
(iii) any other terms or provisions of such Class VPN Loan, which shall not
be inconsistent with the provisions of this Series Supplement, the
Sale and Servicing Agreement or any other Class VPN Loan Agreement.
2.3 INTEREST ON THE SERIES C2002-1 DEBT OBLIGATIONS.
(a) The Series C2002-1 Notes shall bear interest at the applicable
Interest Rate for each such Class and such interest shall be payable
on each Payment Date for the Series C2002-1 Notes of each such Class.
(b) Interest on the Outstanding Amount of the Class A-1 Notes shall be
calculated, in arrears, at the applicable Interest Rate for the Class
on the basis of a year of 365 days and the actual number of days
elapsed in the applicable Interest Period and shall be paid quarterly
on the Monthly Payment Date in March, June, September and December of
each year, commencing on March 6, 2003. Interest on the Outstanding
Amount of the Class A-2 Notes shall be calculated semi-annually, in
arrears, at the applicable Interest Rate for the Class on the basis of
a year of 365 days and computed on a semi-annual equivalent basis and
shall be paid semi-annually on the Monthly Payment Date in June and
December of each year, commencing June 6, 2003, and for both the Class
A-1 and Class A-2 Notes, paid on the Targeted Final Payment Date of
the Class or, if any such date is not a Business Day, on the next
succeeding Business Day; provided, however, that for any Class A Note
Payment Date for a Class of Class A Notes during an Amortization
Period, interest on the Outstanding Amount of the Class A Notes of
such Class will be calculated at a rate equal to the "monthly
equivalent interest rate" to the Interest Rate of the Class in
accordance with the definition of Noteholders' Interest Distributable
Amount and shall, except as provided below, be paid as described above
in this section on each Class A Note Payment Date. On the first Class
A Note Payment Date for a Class of Class A Notes during an
Amortization Period, there shall be paid to the Holders of each Class
of Class A Notes the interest accrued and unpaid on the Class A Notes
of the Class from and including the prior Class A Note Payment Date
for the Class to and excluding
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such Class A Note Payment Date, calculated as described in the first
sentence of this Section 2.3(b). Interest for any Class A Note Payment
Date will accrue from and including the preceding Class A Note Payment
Date (or the Closing Date, in the case of the initial Class A Note
Payment Date) to but excluding that Class A Note Payment Date.
(c) Interest on the Outstanding Amount of the Class B Notes and the Class
C Notes shall be calculated in arrears, at the applicable Interest
Rate for such Class on the basis of a 365 day year and computed on a
semi-annual equivalent basis and shall be paid on the Class B Notes
and Class C Notes semi-annually on the Monthly Payment Date in June
and December of each year commencing on June 6, 2003, and for both the
Class B and Class C Notes, paid on the Targeted Final Payment Date of
such Class or, if any such date is not a Business Day, on the next
succeeding Business Day; provided, however, that for any Class B/C
Note Payment Date during an Amortization Period, interest on the
Outstanding Amount of the Class B Notes and Class C Notes will be
calculated at a rate equal to the "monthly equivalent interest rate"
to the Interest Rate of each such Class in accordance with the
definition of Noteholders' Interest Distributable Amount and shall,
except as provided below, be paid as described above in this section
on each Class B/C Note Payment Date. On the first Class B/C Note
Payment Date during an Amortization Period, there shall be paid to the
Holders of the Class B Notes and the Class C Notes the interest
accrued and unpaid on the Class B Notes and the Class C Notes from and
including the prior Class B/C Note Payment Date for such Class to and
excluding such Class B/C Note Payment Date, calculated as described in
the first sentence of this Section 2.3(c). Interest for any Class B/C
Note Payment Date will accrue from and including the preceding Class
B/C Note Payment Date (or the Closing Date, in the case of the initial
Class B/C Note Payment Date) to but excluding that Class B/C Note
Payment Date.
(d) The "monthly equivalent interest rate" for any Interest Rate on any
Class of Offered Notes (other than the Class A-1 Notes) is the
applicable interest rate for such Class that, when compounded for six
months, yields interest in an amount equal to interest on the Offered
Notes of such Class at the Interest Rate of such Class, divided by
two.
(e) Interest will accrue on the Class D Notes and on each Class VPN Loan
at a per annum rate equal to the Interest Rate for the Class D Notes
or such Class VPN Loan, as applicable, and shall be payable on each
Monthly Payment Date. Interest for the Class D Notes or any Class VPN
Loan and any Monthly Payment Date will accrue from and including the
preceding Monthly Payment Date (or the date of advance of the Class
VPN Loan, in the case of the first Monthly Payment Date for such Class
VPN Loan) to and excluding such Monthly Payment Date, for the actual
number of days elapsed.
(f) Any instalment of interest payable on any Class of Series C2002-1 Debt
Obligations on any Payment Date for such Class shall be punctually
paid or duly provided for by a deposit by or at the direction of the
Trust into the Note Distribution Account, on each Monthly Payment Date
and shall be paid to the
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Holder of such Series C2002-1 Notes or to the applicable Class VPN
Lender on each Payment Date for the Class by cheque mailed
first-class, postage prepaid to such Person's address as it appears on
the related Note Register on such Record Date or as specified in the
applicable Class VPN Loan Agreement; provided, however, that, unless
and until Definitive Notes for the Offered Notes have been issued
pursuant to Section 2.12 of the Indenture, with respect to Offered
Notes registered on the applicable Record Date in the name of the
Clearing Agency or its nominee (initially, CDS & Co.), payment shall
be made in accordance with the Letter of Representations; provided,
further, that with respect to any Class VPN Loans or Class D Notes,
upon written request of the Holder thereof or if so provided, in the
related Class VPN Loan Agreement, payment shall be made by wire
transfer of immediately available funds to the account designated by
such Holder until further written notice from such Holder.
(g) If the Trust defaults in a payment of interest on any Class of Series
C2002-1 Debt Obligations, the Trust shall pay, in any lawful manner,
interest (plus interest on such interest to the extent lawful) at the
applicable Interest Rate from the Payment Date for which such payment
is in default to the Monthly Payment Date on which such defaulted
interest payment is paid, such interest on defaulted interest to be
compounded and payable monthly on each Monthly Payment Date.
2.4 PRINCIPAL PAYMENTS ON THE SERIES C2002-1 DEBT OBLIGATIONS.
(a) Prior to the occurrence of an Event of Default and acceleration of the
Series C2002- 1 Notes in accordance with Section 7.2 of the Indenture
and this Series Supplement, the principal of each Class of Series
C2002-1 Debt Obligations shall be payable in full on the Final
Scheduled Payment Date for such Class and, to the extent of funds
available therefor, in instalments on the Payment Dates (if any)
preceding the Final Scheduled Payment Date for such Class, in the
amounts and in accordance with the priorities set forth in Sections
3.1(b) and (c), as applicable. All principal payments on each Class of
Series C2002-1 Debt Obligations on any Payment Date for such Class
shall be made pro rata to the Holders of such Class entitled thereto.
Any instalment of principal payable on any Series C2002-1 Note shall
be punctually paid or duly provided for by a deposit by or at the
direction of the Trust into the Note Distribution Account on the
applicable Payment Date and shall be paid to the Person in whose name
each Series C2002-1 Note of such Class is registered on the applicable
Record Date or to the applicable Class VPN Lender, by cheque mailed
first-class, postage prepaid to such Person's address as it appears on
the Note Register or in the related Class VPN Loan Agreement, as
applicable, on such Record Date; provided, however, that, (A) unless
and until Definitive Notes for the Offered Notes have been issued
pursuant to Section 2.12 of the Indenture, with respect to Offered
Notes registered on the Record Date in the name of the Clearing Agency
or its nominee, payment shall be made in accordance with the Letter of
Representations and (B) with respect to any Class VPN Loans and Class
D Notes, upon written request of the Holder thereof or if so provided,
in the related Class VPN Loan Agreement, payment shall be made by wire
transfer of immediately available funds to the account designated by
such Holder until further written notice from such Holder, except for,
in each case: (i)
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the final instalment of principal on any Series C2002-1 Note; and (ii)
the Redemption Price for the Series C2002-1 Debt Obligations redeemed
pursuant to Section 4.1, which, in each case, shall be payable as
provided herein and in the Indenture.
(b) From and after the occurrence of an Event of Default and a declaration
of or other acceleration of the Series C2002-1 Debt Obligations in
accordance with Section 7.2 of the Indenture and this Series
Supplement, until such time as all Events of Default have been cured
or waived as provided in Section 7.2 of the Indenture, (i) all
principal payments on the Offered Notes and the Class VPN Loans shall
be allocated pro rata among the Holders of all of the Offered Notes of
each Class and the Class VPN Loans of each Class on the basis of the
respective aggregate unpaid principal balances of the Offered Notes of
such Class and the Class VPN Loans of such Class held by such Holders,
(ii) all principal payments on Class D Notes shall be allocated pro
rata among the Holders of all of the Class D Notes on the basis of the
respective aggregate unpaid principal balances of the Class D Notes
held by such Holders and (iii) the Outstanding Amount of the Series
2002-1 Debt Obligations shall be paid in accordance with the
priorities set forth in Section 3.2; provided, however, that no
payments of principal on the Class D Notes shall be made until all
Offered Notes and Class VPN Loans have been paid in full.
ARTICLE 3
SERIES ACCOUNTS; PAYMENTS
3.1 SERIES ACCOUNTS; PAYMENTS.
(a) On or prior to the Series Issuance Date, the Trust shall cause the
Servicer to establish and maintain, in the name of the Indenture
Trustee for the benefit of the Series C2002-1 Debtholders and the
Related Specified Creditors, the Series Accounts as provided in
Article 5 of the Sale and Servicing Agreement.
(b) On or before each Monthly Payment Date:
(i) amounts shall be deposited in the Collection Account as provided
in Sections 5.3, 5.5, 5.6 and 9.1 of the Sale and Servicing
Agreement; and
(ii) the Aggregate Noteholders' Interest Distributable Amount and the
Aggregate Principal Distributable Amount, in each case, for such
Monthly Payment Date shall be transferred from the Collection
Account to the Note Distribution Account as and to the extent
provided in Section 5.6(c) of the Sale and Servicing Agreement.
(c) On each Monthly Payment Date the Indenture Trustee shall apply and, as
required, pay to the Holders of Series C2002-1 Debt Obligations from
the amounts on deposit in the Note Distribution Account in the
following order of priority and in the amounts determined below:
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(i) first, there shall be distributed from the Note Distribution Account
the following:
(A) the Noteholders' Interest Distributable Amount for each Class VPN
Loan and such Monthly Payment Date shall be paid pro rata to the
holders of the Class VPN Loans;
(B) if such Monthly Payment Date is a Payment Date for a Class of
Class A Notes, the Noteholders' Interest Distributable Amounts
for that Class on deposit in the Note Distribution Account shall
be paid to the holders of the Class A Notes of that Class;
(C) if such Monthly Payment Date is a Payment Date for the Class B
Notes, the Noteholders' Interest Distributable Amounts for that
Class on deposit in the Note Distribution Account shall be paid
to the holders of the Class B Notes; and
(D) if such Monthly Payment Date is a Payment Date for the Class C
Notes, the Noteholders' Interest Distributable Amounts for that
Class on deposit in the Note Distribution Account shall be paid
to the holders of the Class C Notes.
provided, however, that if (x) there is any outstanding Noteholders'
Interest Carryover Amount for the Class A Notes of any Class and the
Class VPN Loans on any Monthly Payment Date, (y) the amount deposited
in the Note Distribution Account on any Monthly Payment Date in
respect of interest accrued on the Class A Notes of any Class and the
Class VPN Loans is less than the sum of the Noteholders' Interest
Distributable Amounts for such Class or Classes and such Monthly
Payment Date, or (z) there are insufficient funds on deposit in the
Note Distribution Account to make the payments described above in
respect of the Noteholders' Interest Distributable Amounts for all
Classes of Class A Notes and Class VPN Loans, the amount on deposit in
the Note Distribution Account for payments of interest on the Class A
Notes and the Class VPN Loans shall be applied to each such Class pro
rata on the basis of the respective amount otherwise to be applied to
such Class or Classes as described above.
(ii) second, unless otherwise provided in Section 3.2 below, an amount
equal to the Total Noteholders' Principal Payment Amount (or such
lesser amount as is on deposit in the Note Distribution Account in
respect thereof on the Monthly Payment Date) shall be applied to each
Class of Offered Notes and the Class VPN Loans in the following
amounts and in the following order of priority and paid to the
applicable holders of the Offered Notes and the applicable Class VPN
Lenders:
(A) Except during a Sequential Amortization Period:
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(1) on each Monthly Payment Date that is not a Targeted Final
Payment Date for any Class of Offered Notes:
A. to the Class VPN Lenders as set forth in clause (iii)
below, until the Outstanding Amount of the Class VPN
Loans is reduced to zero; and
B. the remainder, if any, to the Accumulation Account; and
C. on or after the Monthly Payment Date on which the
Offered Notes and the Class VPN Loans have been paid in
full, to the Holders of the outstanding Maturity
Advances, pro-rata, until the Outstanding Amount of
such Maturity Advances is reduced to zero.
(2) on each Monthly Payment Date that is a Targeted Final
Payment Date for a Class of Offered Notes:
A. first, if that Targeted Final Payment Date is the
Targeted Final Payment Date for a Class of Class A
Notes, to such Class until the Outstanding Amount of
such Class is reduced to zero,
B. second, to the Class VPN Lenders as set forth in clause
(iii) below, until the Outstanding Amount of the Class
VPN Loans is reduced to zero,
C. third, if that date is the Targeted Final Payment Date
for the Class B Notes, to the Class B Notes until the
Outstanding Amount of the Class B Notes is reduced to
zero,
D. fourth, if that date is the Targeted Final Payment Date
for the Class C Notes, to the Class C Notes until the
Outstanding Amount of the Class C Notes is reduced to
zero, and
E. fifth, the remainder, if any, to the Accumulation
Account so long as any Offered Note is outstanding.
(B) during a Curable Sequential Amortization Period, to the Class of
Class A Notes the Outstanding Amount of which was not reduced to
zero on its Targeted Final Payment Date and the Class VPN
Lenders, pro-rata, based on the Noteholders' Principal
Distributable Amount for such Class of Offered Notes and the
Noteholders' Principal Distributable Amount for all Classes of
Class VPN Loans as follows:
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(1) payments allocable to such Class of Class A Notes under this
section shall be paid to the holders of such Class until the
Outstanding Amount of such Class is reduced to zero; and
(2) payments allocable to the Class VPN Lenders under this
section shall be applied as set forth in clause (iii) below.
(C) during an Extended Sequential Amortization Period:
(1) first, to the Class A Notes and the Class VPN Loans,
pro-rata, based upon the aggregate Outstanding Amounts of
all Class A Notes and Class VPN Loans as follows:
A. payments allocable to the Class A Notes under this
section shall be paid to the holders of each Class of
Class A Notes in the following amounts and in the
following order of priority:
I. first, to the outstanding Class A-1 Notes, if any,
until the Outstanding Amount of such Class is
reduced to zero, and
II. second, to the outstanding Class A-2 Notes, if
any, until the Outstanding Amount of such Class is
reduced to zero, and,
B. payments allocable to the Class VPN Loans shall be
applied as set forth in clause (iii) below.
(2) second, on or after the Monthly Payment Date on which the
Class A Notes and the Class VPN Loans have been paid in
full, to the holders of the Class B Notes until the
Outstanding Amount of such Class is reduced to zero;
(3) third, on or after the Monthly Payment Date on which the
Class A Notes, the Class VPN Loans and Class B Notes have
been paid in full, to the holders of the Class C Notes until
the Outstanding Amount of such Class is reduced to zero; and
(4) fourth, on or after the Monthly Payment Date on which the
Offered Notes and the Class VPN Loans have been paid in
full, to the Holders of the outstanding Maturity Advances,
pro-rata, until the Outstanding Amount of such Maturity
Advances is reduced to zero.
(iii) Payments allocable to the Class VPN Loans pursuant to clause
(ii) above shall be applied and paid to the Class VPN Lenders
until the Outstanding
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Amounts of such Class VPN Loans have been reduced to zero, in
each case, sequentially according to the date of advance of each
Class VPN Loans such that no payments in respect of the
Outstanding Amount of any Class of Class VPN Loans will be made
until the Outstanding Amounts of all Classes of Class VPN Loans
having an earlier date of advance have been reduced to zero;
provided, however, that during a Non-Sequential Amortization
Period, payments allocable to the Class VPN Loans pursuant to
clause (ii) above shall be applied and paid to the Class VPN
Lenders, pro-rata, as provided in Section 3.2.
(d) On each Monthly Payment Date:
(i) the accrued and unpaid interest on the Class D Notes shall be
paid in the amounts and to the extent provided in Section 5.6(c)
of the Sale and Servicing Agreement; and
(ii) the Outstanding Amount of the Class D Notes shall be paid in the
amounts and to the extent provided in Section 5.6(c) of the Sale
and Servicing Agreement.
(e) Notwithstanding anything to the contrary contained herein or in the
Indenture, Liquidity Advances and Maturity Advances shall be repaid as
provided in Section 2.9 of the Sale and Servicing Agreement, Section
3.1(b) and Section 3.2, as applicable.
3.2 EVENT OF DEFAULT; NON-SEQUENTIAL AMORTIZATION PERIOD.
(a) Notwithstanding Sections 3.1(b), 3.1(c) and 3.1(d), following the
occurrence of an Event of Default and the acceleration of the Series
C2002-1 Debt Obligations pursuant to Section 5.2 of this Series
Supplement or the receipt of Event of Default Proceeds pursuant to
Section 9.2 of the Sale and Servicing Agreement, (w) the Total
Available Funds for each Monthly Payment Date, (x) on the first
Monthly Payment Date following the Non-Sequential Amortization
Commencement Date, any and all funds and Eligible Investments on
deposit in or credited to the Note Distribution Account, the
Accumulation Account, the Pre-Funding Account or the Capitalized
Interest Account, (y) any money or property collected pursuant to
Article 8 of the Indenture in respect of the Series C2002-1 Collateral
and (z) any such Event of Default Proceeds, shall be applied by the
Indenture Trustee on the related Monthly Payment Date in the following
order of priority:
(i) FIRST: amounts due and owing and required to be paid to the
Servicer, the Administrator, the Backup Servicer, the
Trustee and the Indenture Trustee, respectively, pursuant to
the priorities set forth in Section 5.6(c)(i) and (ii) of
the Sale and Servicing Agreement and not previously paid, in
the order of such priorities and without limitation,
preference or priority of any kind within such priorities
except as otherwise specified in such priorities;
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(ii) SECOND: to the Swap Counterparties, the Holders of the
Offered Notes and the Holders of the Class VPN Loans, the
amounts due and unpaid for interest and swap payments under
the Swap Agreements, the Offered Notes and the Class VPN
Loans and not previously paid, in each case, pursuant to the
priorities set forth in Sections 5.6(c)(iii), (iv), (v) and
(vi) of the Sale and Servicing Agreement, in the order of
such priorities and without limitation, preference or
priority of any kind within such priorities except as
otherwise specified in such priorities;
(iii) THIRD: to the Servicer, for outstanding Liquidity Advances
until the principal thereof is paid in full;
(iv) FOURTH: to the Series C2002-1 Debtholders for amounts due
and unpaid on the Offered Notes and the Class VPN Loans for
principal:
(A) first, to the Holders of the Class A Notes and the
Class VPN Loans, pro-rata, on the basis of the
Outstanding Amounts of such Offered Notes and Class VPN
Loans until the Outstanding Amounts of the Class A
Notes and Class VPN Loans are reduced to zero;
(B) second, to the Holders of the Class B Notes, pro-rata,
until the Outstanding Amount of the Class B Notes is
reduced to zero;
(C) third, to the Holders of the Class C Notes, pro-rata,
until the Outstanding Amount of the Class C Notes is
reduced to zero; and
(D) fourth, to the Holders of the outstanding Maturity
Advances, pro-rata, until the Outstanding Amount of
such Maturity Advances is reduced to zero.
(v) FIFTH: to the Holders of the Class VPN Loans entitled
thereto, pro rata, all Additional Class VPN Loan Amounts, if
any, for that Monthly Payment Date or from prior Monthly
Payment Dates until paid in full;
(vi) SIXTH, to the Holders of the Class D Notes entitled thereto,
pro rata, for amounts due and unpaid on the Class D Notes,
first, the accrued and unpaid interest on the Class D Notes
not previously paid and, second, the Outstanding Amount of
the Class D Notes until the Outstanding Amount of the Class
D Notes is reduced to zero; and
(vii) SEVENTH, to the Seller all remaining funds in part payment
of the Residual Purchase Price of the Purchased Assets.
(b) Subject to Section 5.1(b) of the Sale and Servicing Agreement, any
investments on deposit in the Reserve Account which shall not mature
on or before such Monthly Payment Date shall be sold by the Indenture
Trustee at such time as shall result in the Indenture Trustee
receiving the proceeds from such sale not later than such Monthly
Payment Date.
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(c) The Trustee may fix a record date and payment date for any payment to
Series C2002-1 Debtholders pursuant to this Section 3.2. At least 15
days before such record date the Trust shall mail to each Series
C2002-1 Debtholder and the Indenture Trustee a notice that states the
record date, the payment date and the amount to be paid.
3.3 GENERAL PROVISIONS REGARDING SERIES ACCOUNTS.
(a) So long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Series Accounts shall
be invested in Eligible Investments and reinvested by the Indenture
Trustee upon Trust Order, subject to the provisions of Section 5.1(b)
of the Sale and Servicing Agreement. All Investment Earnings in the
Series Accounts shall be deposited by the Indenture Trustee into the
Collection Account, and any loss or expenses resulting from such
investments shall be charged to such account. The Trust will not
direct the Indenture Trustee to make any investment of any funds or to
sell any investment held in any of the Series Accounts unless the
security interest granted and perfected in such account will continue
to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in
connection with any direction to the Indenture Trustee to make any
such investment or sale, if requested by the Indenture Trustee, the
Trust shall deliver to the Indenture Trustee an Opinion of Counsel to
such effect.
(b) Subject to Section 11.2(4) of the Indenture, the Indenture Trustee
shall not in any way be held liable for the selection of Eligible
Investments or by reason of any insufficiency in any of the Series
Accounts resulting from any loss on any Eligible Investment included
therein, except for losses attributable to the Indenture Trustee's
failure to make payments on such Eligible 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 Trust shall have failed to give investment directions for
any funds on deposit in the Series Accounts to the Indenture Trustee
by 11:00 a.m. (Toronto time) (or such other time as may be agreed by
the Trust 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 Series C2002-1 Debt Obligations but the Series C2002-1
Debt Obligations shall not have been declared or become due and
payable pursuant to Section 7.2 of the Indenture or this Series
Supplement, or, if the Series C2002-1 Debt Obligations shall have been
declared or have become due and payable following an Event of Default,
amounts collected or receivable from the Related Collateral are being
applied in accordance with Section 3.2 of this Series Supplement as if
there had not been such a declaration or acceleration; then the
Indenture Trustee shall invest and reinvest funds in the Series
Accounts in the class of investments specified in Clause (a) of the
definition of "Eligible Investments".
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ARTICLE 4
REDEMPTION OF SERIES C2002-1 DEBT OBLIGATIONS
4.1 REDEMPTION.
The Series C2002-1 Debt Obligations are subject to redemption in whole, but
not in part, on any Monthly Payment Date on which the Servicer or Seller
exercises its option to purchase the Related Collateral pursuant to Section 9.1
of the Sale and Servicing Agreement for a purchase price equal to the Redemption
Price; provided, however, that the Trust has available funds sufficient to pay
the Redemption Price and all accrued and unpaid Additional Class VPN Loan
Amounts to the date fixed for redemption. The Administrator or the Trust shall
furnish the Rating Agencies notice of such redemption. If the Series C2002-1
Debt Obligations are to be redeemed pursuant to this Section 4.1, the
Administrator or the Trust shall furnish notice of such election to the
Indenture Trustee not later than five Business Days prior to the Redemption Date
and the Trust shall deposit with the Indenture Trustee in the Note Distribution
the Redemption Price of the Series C2002-1 Debt Obligations to be redeemed and
all accrued and unpaid Additional Class VPN Loan Amounts to the date fixed for
redemption.
4.2 FORM OF REDEMPTION NOTICE.
Notice of redemption under Section 4.1 shall be given by the Indenture
Trustee by first-class mail, postage prepaid, mailed not less than five days
prior to the applicable Redemption Date to each Holder of Series C2002-1 Debt
Obligations, 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, or, in the case of Class VPN Loans, to the applicable Class VPN Lender
as provided in the related Class VPN Loan Agreement. If Definitive Notes of a
Class have not been issued, notice of redemption shall be given to the Clearing
Agency in accordance with the Letter of Representations.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price and any unpaid Additional Class VPN
Loan Amounts;
(iii) the place where the Series C2002-1 Notes of each Class are
to be surrendered for payment of the Redemption Price (which
shall be the office or agency of the Trust to be maintained
with respect to the Series C2002-1 Notes as provided in the
Indenture); and
(iv) CUSIP numbers, in the case of Offered Notes for which
Definitive Notes have not been issued.
Notice of redemption of the Series C2002-1 Debt Obligations shall be given
by the Indenture Trustee in the name and at the expense of the Trust. Failure to
give notice of redemption, or any defect therein, to any Holder of any Series
C2002-1 Debt Obligations shall not impair or affect the validity of the
redemption of any other Series C2002-1 Debt Obligations.
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4.3 SERIES C2002-1 DEBT OBLIGATIONS PAYABLE ON REDEMPTION DATE.
The Series C2002-1 Debt Obligations or portions thereof to be redeemed
shall, following notice of redemption pursuant to this Article, become due and
payable on the Redemption Date at the Redemption Price plus, in the case of the
Class VPN Loans, any accrued and unpaid Additional Class VPN Loan Amounts owing
to the related Class VPN Lender and (unless the Trust 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 5
RELATED EVENTS OF DEFAULT
5.1 EVENTS OF DEFAULT.
Notwithstanding Section 7.1 of the Indenture, "Event of Default", wherever
used herein or in the Indenture or the other Basic Documents with respect to the
Series C2002-1 Debt Obligations and the other Related Obligations, means any one
of the following events:
(a) failure to pay any interest on any Series C2002-1 Debt Obligation
(other than the Class D Notes) when the same becomes due and payable,
and such failure shall continue unremedied for a period of five days
following the date that such interest becomes due and payable; or
(b) failure to pay the Outstanding Amount of any Note of any Class or any
Class VPN Loan on the applicable Final Scheduled Payment Date for that
Class of Note or Class VPN Loan; or
(c) default in the observance or performance of any covenant or agreement
of the Trust made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is
dealt with specifically elsewhere in this Section), or any
representation or warranty of the Trust made in this Indenture or in
any certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days (or for such longer period, not in excess of 90
days, as may be reasonably necessary to remedy such default; provided
that such default is capable of remedy within 90 days or less and the
Servicer on behalf of the Trust delivers an Officer's Certificate to
the Indenture Trustee to the effect that the Trust has commenced, or
will promptly commence and diligently pursue, all reasonable efforts
to remedy such default) after there shall have been given, by
registered mail, to the Trust by the Indenture Trustee or to the Trust
and the Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Series C2002-1 Debt Obligations, a written
notice specifying such default or incorrect representation or warranty
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
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(d) an Insolvency Event shall occur with respect to the Trust.
5.2 ACCELERATION OF SERIES C2002-1 DEBT OBLIGATIONS.
(a) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee in its discretion may, or if so requested in writing
by the Holders of a majority of the Outstanding Amount of the Series
C2002-1 Debt Obligations shall, declare by written notice to the Trust
that the Series C2002-1 Debt Obligations become, whereupon they shall
become, immediately due and payable at par, together with accrued
interest thereon.
(b) 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 provided in
this Article 5 provided, the Holders of a majority of the Outstanding
Amount of the Series C2002-1 Debt Obligations, by written notice to
the Trust and the Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Trust has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all payments of principal of and interest on all Series
C2002-1 Debt Obligations and all other amounts that would
then be due hereunder or upon such Series C2002-1 Debt
Obligations if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and
counsel; and
(C) all Events of Default, other than the nonpayment of the
principal of the Series C2002-1 Debt Obligations that has
become due solely by such acceleration, have been cured or
waived as provided in Section 7.2 of the Indenture.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
ARTICLE 6
SUPPLEMENTAL INDENTURES
6.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SERIES C2002-1 DEBTHOLDERS.
(a) Without the consent of the Series C2002-1 Debtholders but with prior
written notice to the Rating Agencies, the Trust and the Indenture
Trustee, when authorized by a Trust Order, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Indenture Trustee, for any of the following
purposes:
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(i) to add to the covenants of the Trust, for the benefit of the
Series C2002-1 Debtholders and the Related Specified
Creditors, or to surrender any right or power herein
conferred upon the Trust;
(ii) to convey, transfer, assign, mortgage or pledge any property
to or with the Indenture Trustee for the benefit of the
Series C2002-1 Debtholders and the Related Specified
Creditors;
(iii) to replace the Reserve Account with another form of credit
enhancement; provided that the Rating Agency Condition is
satisfied prior to such replacement; or
(iv) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that 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, as evidenced by an Opinion of
Counsel, materially adversely affect the interests of the Trustee, the
Indenture Trustee, the Swap Counterparties, the Seller or the
Servicer.
(b) The Trust and the Indenture Trustee, when authorized by a Trust Order,
may, without the consent of any of the Series C2002-1 Debtholders but
with prior written notice to the Rating Agencies, 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 Series Supplement or of modifying in any manner the
rights of the Series C2002-1 Debtholders under this Series Supplement
and the Indenture; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of the Holders of any Series C2002-1 Debt
Obligations or any Related Specified Creditor.
(c) The 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.
6.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SERIES C2002-1 DEBTHOLDERS
The Trust and the Indenture Trustee, when authorized by a Trust Order, may,
with prior written notice to the Rating Agencies and with the consent of the
Series C2002-1 Debtholders evidencing not less than a majority of the
Outstanding Amount of the Series C2002-1 Debt Obligations, 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 Series Supplement and the Indenture, in each case relating to, or of
otherwise modifying in any manner, the rights of the Series C2002-1 Debtholders,
the rights of any Class of Series C2002-1 Debtholders and the Related Specified
Creditors under this Series Supplement and the Indenture; provided, however,
that no such supplemental indenture shall, without the consent of each
Noteholder, Class VPN Lender and each other Related Specified Creditor affected
thereby:
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(a) change the date of payment of any instalment of principal of or
interest on any Series C2002-1 Note or Related Obligation, or reduce
the principal amount thereof, the interest rate thereon or the
Redemption Price with respect thereto, change the provisions of this
Series Supplement and the Indenture relating to the application of
collections on, or the proceeds of the sale of, the Related Collateral
to the payment of principal of or interest on the Series C2002-1 Debt
Obligations or Related Obligations, or change any place of payment
where, or the coin or currency in which, any Related Obligation or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of the Indenture requiring the
application of funds available therefor to the payment of any such
amount due on or after the respective due dates thereof (or, in the
case of redemption, on or after the Redemption Date);
(b) reduce the percentage of the Outstanding Amount, the consent of the
Series C2002-1 Debtholders or the Holders of any Class thereof, of
which is required for any such supplemental indenture, or the consent
of the Series C2002-1 Debtholders or the Holders of any Class thereof,
of which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition of
"Outstanding" with respect to the Series C2002-1 Debt Obligations;
(d) reduce the percentage of the Outstanding Amount of the Series C2002-1
Debt Obligations or the Holders of any Class thereof, required to
direct the Indenture Trustee to direct the Trust to sell or liquidate
the Related Collateral pursuant to Section 8.2 of the Indenture;
(e) modify any provision of this Section except to increase any percentage
specified herein or to provide that certain additional provisions of
this Series Supplement, the Indenture or the Basic Documents cannot be
modified or waived without the consent of the Holder of each Series
C2002-1 Debt Obligation affected thereby;
(f) modify any of the provisions of this Series Supplement and the
Indenture in such manner as to affect the calculation of the amount of
any payment of interest or principal due on any Series C2002-1 Debt
Obligation on any Payment Date (including the calculation of any of
the individual components of such calculation) or to affect the rights
of the Series C2002-1 Debtholders to the benefit of any provisions for
the mandatory redemption of the Series C2002-1 Debt Obligations
contained herein; or
(g) permit the creation of any Lien ranking prior to or on a parity with
the Lien of the Indenture with respect to any part of the Related
Collateral or, except as otherwise permitted or contemplated herein or
in the Indenture, terminate the Lien of the Indenture on any Related
Collateral at any time subject hereto or deprive any Series C2002-1
Debtholder of the security provided by the Lien of the Indenture.
Promptly after the execution by the Trust and the Indenture Trustee of any
supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Series C2002-1
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Debtholders 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.
ARTICLE 7
GENERAL
7.1 CONFIRMATION OF INDENTURE.
The Indenture, as supplemented by this Series Supplement, shall and does
continue in full force and effect, otherwise unamended, and the Indenture, as so
supplemented together with all the grants created thereby, are hereby ratified
and confirmed.
7.2 OBLIGATIONS OF THE TRUST.
Nothing contained in this Series Supplement shall in any way modify or
relieve the Trust from its obligations to carry out its covenants contained in
the Indenture.
7.3 ACCEPTANCE.
The Indenture Trustee hereby accepts the trust in this Series Supplement
declared and provided for and agrees to perform the same on the terms and
conditions herein set forth.
7.4 APPOINTMENT OF MANDATORY
The Trust and the Indenture Trustee, for itself and on behalf of the Series
C2002-1 Debtholders and the other Specified Creditors, hereby grants a power of
attorney and a mandate to AmeriCredit Canada for the purpose of executing, on
behalf of the Trust, the Indenture Trustee, the Series C2002-1 Debtholders and
other Related Specified Creditors, any and all acquittances, mainlevees,
radiations, cancellations, reductions, retrocessions and all other documents for
the purpose of discharging, releasing, reassigning, retroceding, waiving or
subordinating any reservation of title, hypothec, lease, right of ownership
under a leasing contract (credit-bail), security interest, charge in respect of
accounts receivable and any other personal or real right which may from time to
time be registered in the Province of Quebec, and more particularly, at the
Register of Personal and Moveable Real Rights, including endorsing the Trust's,
the Indenture Trustee's, the Series C2002-1 Debtholders' or the other Related
Specified Creditors' name on any consent, filings, registrations or other
documents in furtherance thereof. By acceptance of an Obligation secured by the
Indenture, the Indenture Trustee, for itself and on behalf of the Series C2002-1
Debtholders and the other Related Specified Creditors, is deemed to have granted
the appointment contained in this Section 7.4. Each of the Trust, the Indenture
Trustee, the Series C2002-1 Debtholders and the other Related Specified
Creditors hereby agrees to execute and deliver or cause to be executed and
delivered such instruments and do and cause to be done such further acts as may
be necessary or proper in the reasonable opinion of AmeriCredit to carry out
more effectively the provisions and purposes of this Section 7.4.
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7.5 LIMITATION OF LIABILITY OF TRUSTEE.
This Series Supplement, and every deed, transfer, assignment, agreement or
other instrument made pursuant hereto including, without limitation, the Series
C2002-1 Debt Obligations, made or purporting to be made by or creating an
obligation of the Trust or the Trustee on behalf of, or as trustee of, the Trust
shall be deemed and construed for all purposes as if made by the Trustee, in and
only in its capacity as trustee of the Trust. Any obligations of the Trustee
hereunder or thereunder are non-recourse to the Trustee in its personal capacity
and limited solely to the assets of the Trust securing the Series C2002-1 Debt
Obligations and the Related Obligations. No other property or assets of the
Trustee, whether owned by it in its personal capacity or otherwise, will be
subject to levy, execution or other enforcement procedure with regard to any
obligation under this Series Supplement or any other such deed, transfer,
assignment, agreement or other instrument. There will be no further liability
against the Trustee.
7.6 EXECUTION IN COUNTERPARTS.
This Series Supplement may be executed in several counterparts, each of
which when so executed shall be deemed to be an original and the counterparts
together shall constitute one and the same instrument.
7.7 FORMAL DATE.
For purpose of convenience, this Series Supplement may be referred to as
bearing a formal date of November 22, 2002, irrespective of the actual date of
its execution.
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7.8 DELIVERY OF EXECUTED COPIES.
Each party acknowledges delivery of an executed copy of this Series
Supplement.
IN WITNESS WHEREOF the parties hereto have duly executed this Series
Supplement.
CIBC MELLON TRUST COMPANY, in its capacity as trustee of
AMERICREDIT CANADA AUTOMOBILE RECEIVABLES TRUST
By:
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(Authorized Signatory)
By:
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(Authorized Signatory)
BNY TRUST COMPANY OF CANADA,
as Indenture Trustee
By:
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(Authorized Signatory)
EXHIBIT A-1
EXHIBIT A-2
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H