EXHIBIT 4.4
EXECUTION COPY
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CAPITAL ONE MULTI-ASSET EXECUTION TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
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dated as of October 9, 2002
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GRANTING CLAUSE
Article I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions ................................................... 3
Section 102. Compliance Certificates and Opinions .......................... 15
Section 103. Form of Documents Delivered to Indenture Trustee .............. 16
Section 104. Acts of Noteholders ........................................... 17
Section 105. Notices, etc., to Indenture Trustee and Issuer ................ 19
Section 106. Notices to Noteholders; Waiver ................................ 19
Section 107. Conflict with Trust Indenture Act ............................. 20
Section 108. Effect of Headings and Table of Contents ...................... 20
Section 109. Successors and Assigns ........................................ 20
Section 110. Severability of Provisions .................................... 20
Section 111. Benefits of Indenture ......................................... 20
Section 112. Governing Law ................................................. 21
Section 113. Counterparts .................................................. 21
Section 114. Indenture Referred to in the Trust Agreement .................. 21
Section 115. Legal Holidays ................................................ 21
Article II
NOTE FORMS
Section 201. Forms Generally ............................................... 22
Section 202. Forms of Notes ................................................ 22
Section 203. Form of Indenture Trustee's Certificate of Authentication ..... 22
Section 204. Notes Issuable in the Form of a Global Note ................... 23
Section 205. Temporary Global Notes and Permanent Global Notes ............. 25
Section 206. Beneficial Ownership of Global Notes .......................... 26
Section 207. Notices to Depository ......................................... 27
Article III
THE NOTES
Section 301. General Title; General Limitations; Issuable in Series;
Terms of a Series, Class or Tranche of Notes .................. 28
Section 302. Denominations ................................................. 31
Section 303. Execution, Authentication and Delivery and Dating ............. 31
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Section 304. Temporary Notes ............................................................ 32
Section 305. Registration, Transfer and Exchange ........................................ 32
Section 306. Mutilated, Destroyed, Lost and Stolen Notes ................................ 35
Section 307. Payment of Interest; Interest Rights Preserved; Withholding Taxes .......... 36
Section 308. Persons Deemed Owners ...................................................... 36
Section 309. Cancellation ............................................................... 36
Section 310. New Issuances of Notes ..................................................... 37
Section 311. Specification of Required Subordinated Amount and other Terms with
Respect to each Series, Class or Tranche of Notes .......................... 39
Article IV
ISSUER ACCOUNTS AND INVESTMENTS
Section 401. Collections ................................................................ 40
Section 402. Issuer Accounts ............................................................ 40
Section 403. Investment of Funds in the Issuer Accounts ................................. 40
Article V
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES HELD BY THE
ISSUER OR THE BANK
Section 501. Satisfaction and Discharge of Indenture .................................... 42
Section 502. Application of Trust Money ................................................. 42
Section 503. Cancellation of Notes Held by the Issuer or the Transferor ................. 42
Article VI
EVENTS OF DEFAULT AND REMEDIES
Section 601. Events of Default .......................................................... 44
Section 602. Acceleration of Maturity; Rescission and Annulment ......................... 45
Section 603. Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee .................................................................... 46
Section 604. Indenture Trustee May File Proofs of Claim ................................. 47
Section 605. Indenture Trustee May Enforce Claims Without Possession of Notes ........... 47
Section 606. Application of Money Collected ............................................. 48
Section 607. Indenture Trustee May Elect to Hold the Collateral Certificate ............. 48
Section 608. Sale of Collateral for Accelerated Notes ................................... 48
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Section 609. Noteholders Have the Right to Direct the Time, Method and Place of
Conducting Any Proceeding for Any Remedy Available to the
Indenture Trustee ..................................................................... 48
Section 610. Limitation on Suits ................................................................... 49
Section 611. Unconditional Right of Noteholders to Receive Principal and Interest;
Limited Recourse ...................................................................... 49
Section 612. Restoration of Rights and Remedies .................................................... 49
Section 613. Rights and Remedies Cumulative ........................................................ 50
Section 614. Delay or Omission Not Waiver .......................................................... 50
Section 615. Control by Noteholders ................................................................ 50
Section 616. Waiver of Past Defaults ............................................................... 50
Section 617. Undertaking for Costs ................................................................. 51
Section 618. Waiver of Stay or Extension Laws ...................................................... 51
Article VII
THE INDENTURE TRUSTEE
Section 701. Certain Duties and Responsibilities ................................................... 52
Section 702. Notice of Defaults .................................................................... 53
Section 703. Certain Rights of Indenture Trustee ................................................... 53
Section 704. Not Responsible for Recitals or Issuance of Notes ..................................... 54
Section 705. May Hold Notes ........................................................................ 54
Section 706. Money Held in Trust ................................................................... 55
Section 707. Compensation and Reimbursement, Limit on Compensation, Reimbursement
and Indemnity ......................................................................... 55
Section 708. Disqualification; Conflicting Interests ............................................... 55
Section 709. Corporate Indenture Trustee Required; Eligibility ..................................... 56
Section 710. Resignation and Removal; Appointment of Successor ..................................... 56
Section 711. Acceptance of Appointment by Successor ................................................ 57
Section 712. Merger, Conversion, Consolidation or Succession to Business ........................... 58
Section 713. Preferential Collection of Claims Against Issuer ...................................... 59
Section 714. Appointment of Authenticating Agent ................................................... 59
Section 715. Tax Returns ........................................................................... 60
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Section 716. Representations and Covenants of the Indenture Trustee ......................... 61
Section 717. Indenture Trustee's Application for Instructions from the Issuer ............... 61
Section 718. Appointment of Co-Trustee or Separate Indenture Trustee ........................ 61
Article VIII
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE, ISSUER
AND BENEFICIARY
Section 801. Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders .................................................................... 63
Section 802. Preservation of Information; Communications to Noteholders ..................... 63
Section 803. Reports by Indenture Trustee ................................................... 64
Section 804. Meetings of Noteholders; Amendments and Waivers ................................ 65
Section 805. Reports by Issuer to the Commission ............................................ 67
Article IX
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND SERVICING
AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 901. Supplemental Indentures and Amendments Without Consent of
Noteholders .................................................................... 68
Section 902. Supplemental Indentures with Consent of Noteholders ............................ 70
Section 903. Execution of Amendments and Supplemental Indentures ............................ 71
Section 904. Effect of Amendments and Supplemental Indentures ............................... 71
Section 905. Conformity with Trust Indenture Act ............................................ 71
Section 906. Reference in Notes to Supplemental Indentures .................................. 71
Section 907. Amendments to the Trust Agreement .............................................. 72
Article X
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 1001. Payment of Principal and Interest .............................................. 73
Section 1002. Maintenance of Office or Agency ................................................ 73
Section 1003. Money for Note Payments to be Held in Trust .................................... 73
Section 1004. Statement as to Compliance ..................................................... 75
Section 1005. Legal Existence ................................................................ 75
Section 1006. Further Instruments and Acts ................................................... 75
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Section 1007. Compliance with Laws ..................................... 75
Section 1008. Notice of Events of Default .............................. 75
Section 1009. Certain Negative Covenants ............................... 76
Section 1010. No Other Business ........................................ 76
Section 1011. Rule 144A Information .................................... 76
Section 1012. Performance of Obligations ............................... 76
Section 1013. Issuer May Consolidate, Etc., Only on Certain Terms ...... 77
Section 1014. Successor Substituted .................................... 78
Section 1015. Guarantees, Loans, Advances and Other Liabilities ........ 79
Section 1016. Capital Expenditures ..................................... 79
Section 1017. Restricted Payments ...................................... 79
Section 1018. No Borrowing ............................................. 79
Article XI
EARLY REDEMPTION OF NOTES
Section 1101. Applicability of Article ................................. 80
Section 1102. Optional Repurchase ...................................... 81
Section 1103. Notice ................................................... 81
Article XII
MISCELLANEOUS
Section 1201. No Petition .............................................. 83
Section 1202. Trust Obligations ........................................ 83
Section 1203. Limitations on Liability ................................. 83
Section 1204. Tax Treatment ............................................ 84
Section 1205. Actions Taken by the Issuer .............................. 84
Section 1206. Alternate Payment Provisions ............................. 84
Section 1207. Termination of Issuer .................................... 84
Section 1208. Final Distribution ....................................... 84
Section 1209. Termination Distributions ................................ 85
Section 1210. Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider as Third-
Party Beneficiary ........................................ 85
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EXHIBITS
EXHIBIT A [FORM OF] INVESTMENT LETTER
EXHIBIT B-1 [FORM OF] CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO THE INDENTURE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR
A PORTION OF A TEMPORARY GLOBAL NOTE
EXHIBIT B-2 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG BY [.]
WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED INSTITUTIONAL BUYERS
EXHIBIT B-3 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG BY A
BENEFICIAL OWNER OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE PROVISIONS*
Trust Indenture
Act Section Indenture Section
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310(a)(1) .................................................... 709
(a)(2) .................................................... 709
(a)(3) .................................................... 718
(a)(4) .................................................... Not Applicable
(a)(5) .................................................... 709
(b) ....................................................... 708, 710(d)(i)
(c) ....................................................... Not Applicable
311(a) ....................................................... 713
(b) ....................................................... 713
(c) ....................................................... Not Applicable
312(a) ....................................................... 801, 802
(b) ....................................................... 802(b)
(c) ....................................................... 802(c)
313(a) ....................................................... 803
(b) ....................................................... 803(c)
(c) ....................................................... 803, 803(c)
(d) ....................................................... 805
314(a) ....................................................... 805, 1004
(b) ....................................................... See related Asset Pool
Supplement
(c)(1) .................................................... See related Asset Pool
Supplement
(c)(2) .................................................... See related Asset Pool
Supplement
(c)(3) .................................................... See related Asset Pool
Supplement
(d)(1) .................................................... See related Asset Pool
Supplement
(d)(2) .................................................... Not Applicable
(d)(3) .................................................... Not Applicable
(e) ....................................................... 102
315(a) ....................................................... 701(a), 701(b)
(b) ....................................................... 702
(c) ....................................................... 701(b)
(d) ....................................................... 701(d)
(d)(1) .................................................... 701(d)
(d)(2) .................................................... 701(d)(ii)
(d)(3) .................................................... 701(d)(ii)
(e) ....................................................... 617
316(a)(1)(A) ................................................. 609
316(a)(1)(B) ................................................. 616
316(a)(2) .................................................... Not Applicable
316(b) ....................................................... 611
317(a)(1) .................................................... 603
317(a)(2) .................................................... 604
317(b) ....................................................... 1103
318(a) ....................................................... 107
______________________________
*This reconciliation and tie shall not for any purpose be part of the within
indenture.
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THIS INDENTURE between CAPITAL ONE MULTI-ASSET EXECUTION TRUST, a
statutory trust organized under the laws of the State of Delaware (the
"Issuer"), having its principal office at E.A. Delle Donne Corporate Center,
Montgomery Building, 1011 Centre Road, Wilmington, DE 19805-1266, and THE BANK
OF NEW YORK, a New York banking corporation, in its capacity as Indenture
Trustee (the "Indenture Trustee"), is made and entered into as of October 9,
2002.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Notes to be issued in one or more
fully registered or bearer Series, Classes or Tranches.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
Pursuant to an Asset Pool Supplement, the Issuer shall grant to the
Indenture Trustee for the related Asset Pool for the benefit and security of (a)
the Noteholders secured by such Asset Pool, (b) each Derivative Counterparty to
a Derivative Agreement entered into in connection with the issuance of a Tranche
of Notes that expressly states that such Derivative Counterparty is entitled to
the benefit of the Collateral and (c) the Indenture Trustee, in its individual
capacity, a security interest in all of its right, title and interest, whether
now owned or hereafter acquired, in and to, the Collateral specified in the
related Asset Pool Supplement.
The Security Interest in the Collateral designated for inclusion in
an Asset Pool is granted to secure the Notes issued with respect to that Asset
Pool (and the obligations under this Indenture, the related Asset Pool
Supplement, the related Indenture Supplement or any applicable Derivative
Agreement) equally and ratably without prejudice, priority or distinction
between any Note and any other Note that is expressly secured by such Asset Pool
by reason of difference in time of issuance or otherwise, except as otherwise
expressly provided in this Indenture, in any Asset Pool Supplement or in the
Indenture Supplement which establishes any Tranche of Notes, and to secure (i)
the payment of all amounts due on such Notes (and, to the extent so specified,
the obligations under any applicable Derivative Agreements) in accordance with
their terms, (ii) the payment of all other sums payable by the Issuer under this
Indenture, any Asset Pool Supplement or any Indenture Supplement relating to
such secured Notes and (iii) compliance by the Issuer with the provisions of
this Indenture or any Indenture Supplement or any Asset Pool Supplement relating
to such Notes. This Indenture, as may be supplemented, including by each Asset
Pool Supplement, is a security agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the grant of such Security
Interest, and agrees to perform the duties herein such that the interests of the
Noteholders secured by such Asset Pool may be adequately and effectively
protected.
Particular Notes, Derivative Agreements, Supplemental Credit
Enhancement Agreements and Supplemental Liquidity Agreements will benefit from
the Security Interest to the extent (and only to the extent) proceeds of and
distributions on the Collateral are allocated for their benefit pursuant to this
Indenture, the applicable Asset Pool Supplement and the applicable Indenture
Supplement.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and
conditions upon which the Notes are to be authenticated, issued and delivered,
and in consideration of the premises and the purchase of Notes by the Holders
thereof, it is mutually covenanted and agreed as follows, for the equal and
proportionate benefit of all Holders of the Notes or of a Series, Class or
Tranche thereof, as the case may be.
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest
and other amounts on the Notes and to make payments in respect of Derivative
Agreements, Supplemental Credit Enhancement Agreements or Supplemental Liquidity
Agreements is limited in recourse as set forth in Section 611.
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture, any
Asset Pool Supplement and any Indenture Supplement, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act or in the
related Transfer and Administration Agreement or the related Asset Pool
Supplement, either directly or by reference therein, have the meanings assigned
to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Indenture to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture as originally executed. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(5) "including" and words of similar import will be deemed to be
followed by "without limitation."
"Act," when used with respect to any Noteholder, is defined in
Section 104(a).
"Action," when used with respect to any Noteholder, is defined in
Section 104(a).
"Adjusted Outstanding Dollar Principal Amount" means at any time with
respect to any Series, Class or Tranche of Notes, the Outstanding Dollar
Principal Amount of all Outstanding Notes of such Series, Class or Tranche of
Notes at such time, less any funds on deposit in respect of principal in any
Issuer Account or the related Sub-Account, as applicable, for the benefit of
such Series, Class or Tranche of Notes at such time.
"Administrator" means Capital One, in its capacity as Administrator.
"Adverse Effect" means, whenever used in this Indenture with respect
to any Series, Class or Tranche of Notes with respect to any Action, that such
Action will at the time of its occurrence (a) result in the occurrence of an
Early Redemption Event or Event of Default relating to such Series, Class or
Tranche of Notes, as applicable, (b) adversely affect the amount of funds
available to be distributed to the Noteholders of any such Series, Class or
Tranche of Notes pursuant to this Indenture or the timing of such distributions,
or (c) adversely affect the
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Security Interest of the Indenture Trustee in the Collateral securing the
Outstanding Notes in the related Asset Pool unless otherwise permitted by this
Indenture or any related Asset Pool Supplement.
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Asset Pool" means a pool of Collateral designated for inclusion in a
particular Asset Pool pursuant to an Asset Pool Supplement, that secures a
particular Tranche of Notes or more than one Tranche of Notes as specified in
the applicable Indenture Supplement for each Tranche of Notes.
"Asset Pool Supplement" means, with respect to any Asset Pool, a
supplement to this Indenture, executed and delivered in conjunction with the
first issuance of Notes secured by that Asset Pool, including all amendments
thereof and supplements thereto.
"Authenticating Agent" means any Person authorized by the Indenture
Trustee to authenticate Notes under Section 714.
"Authorized Newspaper" means, with respect to any Series, Class or
Tranche of Notes, publication in the newspaper of record specified in the
applicable Indenture Supplement for that Series, Class or Tranche of Notes, or
if and so long as Notes of any Series, Class or Tranche of Notes are listed on
any securities exchange and that exchange so requires, in the newspaper of
record required by the applicable securities exchange, printed in any language
specified in the applicable Indenture Supplement or satisfying the requirements
of such exchange.
"Bearer Note" means a Note in bearer form.
"Beneficiary" is defined in the Trust Agreement.
"Business Day," unless otherwise specified in the Indenture
Supplement for any Series, Class or Tranche of Notes, means any day other than
(a) a Saturday or Sunday or (b) any other day on which national banking
associations or state banking institutions in New York, New York or Richmond,
Virginia (or, with respect to any Series, Class or Tranche of Notes, any
additional city specified in the related Indenture Supplement), are authorized
or obligated by law, executive order or governmental decree to be closed.
"Capital One" means Capital One Bank, a Virginia banking corporation,
and its successors and permitted assigns.
"Certificate of Authentication" means the certificate of
authentication of the Indenture Trustee, the form of which is described in
Section 203, or the alternative certificate of authentication of the
Authenticating Agent, the form of which is described in Section 714.
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"Class" means, with respect to any Note, the class specified in the
applicable Indenture Supplement.
"Collateral" with respect to each Asset Pool, is defined in the
granting clause in the Asset Pool Supplement for such Asset Pool.
"Collateral Certificate" means any Investor Certificate issued
pursuant to a Pooling and Servicing Agreement and the related Series Supplement
that is included as Collateral in the granting clause of the related Asset Pool
Supplement.
"Collection Account" with respect to each Asset Pool, is defined in
the Asset Pool Supplement for such Asset Pool.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act, or, if at
any time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Corporate Trust Office" means the principal office of the Indenture
Trustee in New York, New York at which at any particular time its corporate
trust business will be principally administered, which office at the date hereof
is located at 101 Barclay Street, Floor 8 West, New York, New York 10286,
Attention: Asset-Backed Securities Unit.
"Depository" means a U.S. Depository or a Foreign Depository, as the
case may be.
"Derivative Agreement" means any currency, interest rate or other
swap, cap, collar, guaranteed investment contract or other derivative agreement.
"Derivative Counterparty" means any party to any Derivative Agreement
other than the Issuer or the Indenture Trustee.
"Discount Note" means a Note that provides for an amount less than
the Stated Principal Amount (but not less than the Initial Dollar Principal
Amount) thereof to be due and payable upon the occurrence of an Early Redemption
Event or other optional or mandatory redemption or the occurrence of an Event of
Default and the acceleration of such Note, in each case before the Expected
Principal Payment Date of the applicable Note.
"Dollar," "$" or "U.S. $" means United States dollars.
"Early Redemption Event" is defined in Section 1101.
"Eligible Deposit Account" means either (a) a segregated account
(including a securities account) with an Eligible Institution or (b) a
segregated trust account with the corporate trust department of a depository
institution (other than Capital One or any Affiliate thereof) organized under
the laws of the United States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank), or a trust
company acceptable to each Note Rating Agency, and acting as a trustee for funds
deposited in such account, so long as any of the securities of such depository
institution or trust company shall
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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) a depository institution (which may
be the Indenture Trustee, the Owner Trustee or any affiliate thereof, but not
Capital One or any Affiliate thereof) organized under the laws of the United
States of America or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), which at all times (i) has
either (x) a long-term unsecured debt rating of A2 or better by Moody's or (y) 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-l+ by Standard & Poor's, (iii) has either (x) if such
institution is rated by Fitch, a long-term unsecured debt rating of A- by Fitch
or (y) a certificate of deposit rating of F1 by Fitch and (iv) is a member of
the FDIC or (b) any other institution that is acceptable to Moody's, Standard &
Poor's and Fitch.
"Eligible Investments" means, unless otherwise provided in the
Indenture Supplement with respect to any Series, Class or Tranche of Notes,
investment property or negotiable instruments which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit (having
original maturities of no more than 365 days) of depository institutions or
trust companies incorporated under the laws of the United States of America or
any one of the states thereof or the District of Columbia (or any domestic
branch of a foreign bank), and subject to supervision and examination by federal
or state banking or depository institution authorities; provided that at the
time of the Trust's investment or contractual commitment to invest therein, the
short-term debt rating of such depository institution or trust company shall be
in the highest ratings investment category of each Note Rating Agency (which, in
the case of Standard & Poor's, shall be A-1+);
(c) commercial paper or other short-term obligations having, at the
time of the Trust's investment or contractual commitment to invest therein, a
rating from each Note Rating Agency in its highest ratings investment category
(which, in the case of Standard & Poor's, shall be A-1+);
(d) demand deposits, time deposits and certificates of deposit which
are fully insured by the FDIC, with a Person the commercial paper of which has a
credit rating from each Note Rating Agency in its highest ratings investment
category (which, in the case of Standard & Poor's shall be A-1+);
(e) notes or bankers' acceptances (having original maturities of no
more than 365 days) issued by any depository institution or trust company
referred to in (b) above;
(f) investments in money market funds rated in the highest ratings
investment category by each Note Rating Agency or otherwise approved in writing
by each Note Rating Agency;
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(g) time deposits (having maturities of not more than thirty (30)
days), other than as referred to in clause (d) above, with a Person the
commercial paper of which has a credit rating from each Note Rating Agency in
its highest ratings investment category; or
(h) any other investment if each Note Rating Agency confirms in
writing that such investment will not cause a Ratings Effect; provided, however,
that no security issued by or other obligation of Capital One or any Affiliated
thereof shall be an Eligible Investment.
"Entity" means any Person other than an individual or government
(including any agency or political subdivision thereof).
"Event of Default" is defined in Section 601.
"Exchange Date" means, with respect to any Tranche of Notes, the
latest of:
(a) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in registered
form, any date that is after the related issuance date;
(b) in the case of exchanges of beneficial interests in Temporary
Global Notes for beneficial interests in Permanent Global Notes in bearer form,
the date of presentation of certification of non-United States beneficial
ownership (as described in Section 205); and
(c) the earliest date on which such an exchange of a beneficial
interest in a Temporary Global Note for a beneficial interest in a Permanent
Global Note is permitted by applicable law.
"Expected Principal Payment Date" means, with respect to any Series,
Class or Tranche of Notes, the scheduled due date of any payment of principal on
such Notes, as specified in the related Indenture Supplement, or if such day is
not a Business Day, the next following Business Day, unless such day is in the
next calendar month, in which case such Expected Principal Payment Date, unless
otherwise specified in the related Indenture Supplement, will be the last
Business Day of the current calendar month.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code,
as amended from time to time.
"Fitch" means Fitch, Inc., or any successor thereto.
"Foreign Currency" means (a) a currency other than Dollars or (b)
denominated in a currency other than Dollars.
"Foreign Currency Note" means a Note denominated in a Foreign
Currency.
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"Foreign Depository" means the Person specified in the applicable
Indenture Supplement, in its capacity as depository for the accounts of any
clearing agencies located outside the United States.
"Global Note" means any Note issued pursuant to Section 204.
"Group" means any one or more Series of Notes which are specified as
belonging to a common Group (including any Group established by an Indenture
Supplement) in the applicable Indenture Supplement. A particular Series may be
included in more than one Group if the Indenture Supplement for such Series so
provides.
"Holder," when used with respect to any Note, means a Noteholder.
"Indenture" or "this Indenture" means this Indenture as originally
executed and as amended, supplemented, restated or otherwise modified from time
to time including by Indenture Supplements for the issuance of Series of Notes
and Asset Pool Supplements for the establishment of Asset Pools entered into
pursuant to the applicable provisions hereof.
"Indenture Supplement" means, with respect to any Series of Notes, a
supplement to this Indenture, executed and delivered in conjunction with the
issuance of such Notes pursuant to Section 301, together with any applicable
Terms Document for any Classes and Tranches of Notes belonging to such Series
related to such Indenture Supplement and any amendment to the Indenture
Supplement executed pursuant to Section 901 or 902, and, in either case,
including all amendments thereof and supplements thereto.
"Indenture Trustee" means the Person named as the Indenture Trustee
in the first paragraph of this Indenture until a successor Indenture Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Indenture Trustee" means and includes each Person who is then an
Indenture Trustee hereunder. If at any time there is more than one such Person,
"Indenture Trustee" as used with respect to the Notes of any Series, Class or
Tranche means the Indenture Trustee with respect to Notes of that Series, Class
or Tranche.
"Indenture Trustee Authorized Officer," when used with respect to the
Indenture Trustee, means any vice president, any assistant vice president, the
treasurer, any assistant treasurer, any senior trust officer or trust officer,
or any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Initial Dollar Principal Amount" means (a) unless otherwise
specified in the applicable Indenture Supplement, with respect to a Series,
Class or Tranche of Dollar Notes, the aggregate initial principal amount of the
Outstanding Notes of such Series, Class or Tranche, and (b) with respect to a
Series, Class or Tranche of Discount Notes or Foreign Currency Notes, the amount
specified in the applicable Indenture Supplement as the Initial Dollar Principal
Amount thereof.
8
"Interest-bearing Note" means a Note that bears interest at a stated
or computed rate on the principal amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Payment Date" means, with respect to any Series, Class or
Tranche of Notes, the scheduled due date of any payment of interest on such
Notes, as specified in the applicable Indenture Supplement, or if such day is
not a Business Day, the next following Business Day, unless such day is in the
next calendar month, in which case the Interest Payment Date, unless otherwise
specified in the related Indenture Supplement, will be the last Business Day of
the current calendar month; provided, however, that upon the acceleration of a
Series, Class or Tranche of Notes following an Event of Default or upon the
occurrence of an Early Redemption Event, or other optional or mandatory
redemption of that Series, Class or Tranche of Notes, each Monthly Principal
Accrual Date will be an Interest Payment Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Invested Amount," with respect to any Collateral Certificate, is
defined in the Series Supplement for the applicable Collateral Certificate, and
with respect to any other Investor Certificate, is defined in the applicable
Pooling and Servicing Agreement and the related Series Supplement.
"Investor Certificate" means an investor certificate, and not a
seller certificate or transferor certificate, issued pursuant to a Pooling and
Servicing Agreement and the related Series Supplement.
"Investor Certificateholder" means the holder of record of an
Investor Certificate.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Issuer" is defined in the first paragraph of this Indenture.
"Issuer Accounts" is defined in the related Asset Pool Supplement.
"Issuer Authorized Officer" means (a) an authorized signatory of the
Owner Trustee, or (b) the chairman or vice-chairman of the board of directors,
chairman or vice-chairman of the executive committee of the board of directors,
the president, any vice-president, the secretary, any assistant secretary, the
treasurer, or any assistant treasurer, in each case of the Beneficiary, or any
other officer or employee of the Beneficiary who is authorized to act on behalf
of the Issuer.
9
"Issuer Certificate" means a certificate (including an Officer's
Certificate) signed in the name of an Issuer Authorized Officer, or the Issuer
by an Issuer Authorized Officer and, in each case delivered to the Indenture
Trustee relating to, among other things, the issuance of a new Series, Class or
Tranche of Notes. Wherever this Indenture requires that an Issuer Certificate be
signed also by an accountant or other expert, such accountant or other expert
(except as otherwise expressly provided in this Indenture) may be an employee of
the Beneficiary.
"Issuer Tax Opinion" means, with respect to any action, an Opinion of
Counsel to the effect that, for United States federal income tax purposes, (a)
such action will not adversely affect the tax characterization as debt of any
Outstanding Series, Class or Tranche of Notes that were characterized as debt at
the time of their issuance, (b) following such action the Issuer will not be
treated as an association (or publicly traded partnership) taxable as a
corporation, (c) such action will not cause or constitute an event in which gain
or loss would be recognized by any Holder of any such Notes, and (d) except as
provided in the related Indenture Supplement, where such action is the issuance
of a Series, Class or Tranche of Notes, following such action such Series, Class
or Tranche of Notes will be properly characterized as debt.
"Legal Maturity Date" means, with respect to a Series, Class or
Tranche of Notes, the date specified in the Indenture Supplement for such Note
as the fixed date on which the principal of such Series, Class or Tranche of
Notes is due and payable.
"Majority Holders" means, with respect to any Series, Class or
Tranche of Notes or all Outstanding Notes, the Holders of greater than 50% in
Outstanding Dollar Principal Amount of the Outstanding Notes of that Series,
Class or Tranche or of all Outstanding Notes, as the case may be.
"Master Trust" means a master trust or other securitization special
purpose entity for which Capital One or an Affiliate of Capital One acts as
transferor or seller or servicer, established pursuant to a Pooling and
Servicing Agreement.
"Master Trust Tax Opinion" means, with respect to any action, an
Opinion of Counsel to the effect that, for United States federal income tax
purposes, (a) such action will not adversely affect the tax characterization as
debt of the Investor Certificates of any outstanding series or class under the
applicable Master Trust that were characterized as debt at the time of their
issuance, (b) following such action such Master Trust will not be treated as an
association (or publicly traded partnership) taxable as a corporation and (c)
such action will not cause or constitute an event in which gain or loss would be
recognized by any Investor Certificateholder.
"Monthly Period" means the period from and including the first day of
a calendar month to and including the last day of a calendar month.
"Monthly Principal Accrual Date" with respect to any Class or Tranche
of Notes, is defined in the Indenture Supplement.
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto.
"Nominal Liquidation Amount" means, with respect to any Outstanding
Series, Class or Tranche of Notes, an amount determined in accordance with the
applicable Indenture
10
Supplement. The Nominal Liquidation Amount for a Series of Notes will be the sum
of the Nominal Liquidation Amounts of all of the Classes or Tranches of Notes of
such Series.
"Non-Receivables Asset Pool" means any Asset Pool designated as such
in the related Asset Pool Supplement.
"Note" or "Notes" means any note or notes of any Series, Class or
Tranche authenticated and delivered from time to time under this Indenture.
"Note Owner" means the beneficial owner of an interest in a Global
Note.
"Note Rating Agency" means, with respect to any Outstanding Series,
Class or Tranche of Notes, each statistical note rating agency selected by the
Issuer to rate such Notes.
"Note Register" is defined in Section 305.
"Note Registrar" means the Person who keeps the Note Register
specified in Section 305.
"Noteholder" means a Person in whose name a Note is registered in the
Note Register or the bearer of any Bearer Note (including a Global Note in
bearer form), as the case may be.
"Officer's Certificate" means a certificate signed by the Beneficiary
or the Owner Trustee and delivered to the Indenture Trustee. Wherever this
Indenture requires that an Officer's Certificate be signed also by an accountant
or other expert, such accountant or other expert (except as otherwise expressly
provided in this Indenture) may be an employee of the Beneficiary.
"Opinion of Counsel" means a written opinion of counsel acceptable to
the Indenture Trustee, who may, without limitation, and except as otherwise
expressly provided in this Indenture, be an employee of or of counsel to the
Issuer, the Beneficiary or any of their Affiliates.
"Outstanding" means, with respect to all Notes, all Notes in all
Asset Pools and, with respect to a Note or with respect to Notes of any Series,
Class or Tranche means, as of the date of determination, all such Notes
theretofore authenticated and delivered under this Indenture, except:
(a) any Notes theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation, or canceled by the Issuer
and delivered to the Indenture Trustee pursuant to Section 309;
(b) any Notes for whose full payment (including principal and
interest) or redemption money in the necessary amount has been theretofore
deposited with the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given if required pursuant to this Indenture,
the related Indenture Supplement, or provision therefor satisfactory to the
Indenture Trustee has been made;
11
(c) any Notes which are canceled pursuant to Section 503; and
(d) any Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, or which will have
been paid pursuant to the terms of Section 306 (except with respect to any such
Note as to which proof satisfactory to the Indenture Trustee is presented that
such Note is held by a person in whose hands such Note is a legal, valid and
binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations,
reallocations or payments to be made, unless the context clearly requires
otherwise, references to "Notes" will be deemed to be references to "Outstanding
Notes." In determining whether the Holders of the requisite principal amount of
such Outstanding Notes have taken any Action hereunder, and for purposes of
Section 804, Notes beneficially owned by the Issuer or the Transferor or any
Affiliate of the Issuer or the Transferor will be disregarded and deemed not to
be Outstanding. In determining whether the Indenture Trustee will be protected
in relying upon any such Action, only Notes which an Indenture Trustee
Authorized Officer knows to be owned by the Issuer or the Transferor, or any
Affiliate of the Issuer or the Transferor, will be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee proves to the satisfaction of the Indenture Trustee the pledgee's
right to act as owner with respect to such Notes and that the pledgee is not the
Issuer or the Transferor or any other obligor upon the Notes or any Affiliate of
the Issuer, the Transferor or such other obligor.
"Outstanding Dollar Principal Amount" means at any time, either:
(a) with respect to any Series, Class or Tranche of Notes (other than
Discount Notes), the aggregate Initial Dollar Principal Amount of the
Outstanding Notes of such Series, Class or Tranche at such time, less the amount
of any withdrawals from any Issuer Account or Sub-Account for such Series, Class
or Tranche of Notes for payment of principal to the Holders of such Series,
Class or Tranche of Notes or the applicable Derivative Counterparty pursuant to
the related Indenture Supplement, or
(b) with respect to any Series, Class or Tranche of Discount Notes,
an amount of the Outstanding Notes of such Series, Class or Tranche calculated
by reference to the applicable formula set forth in the applicable Indenture
Supplement, taking into account the amount and timing of payments of principal
made to the Holders of such Series, Class or Tranche or to the applicable
Derivative Counterparty and accretions of principal, each pursuant to the
related Indenture Supplement;
plus, in either case, the amount of any increase in the Outstanding Dollar
Principal Amount of such Series, Class or Tranche of Notes due to the issuance
of additional Notes of such Series, Class or Tranche pursuant to Section 310.
"Owner Trustee" is defined in the Trust Agreement.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Notes on behalf of the Issuer as provided in
Section 1002 hereof.
"Payment Date" means, with respect to any Series, Class or Tranche of
Notes, the applicable Principal Payment Date or Interest Payment Date.
12
"Payment Instruction" means with respect to any Series of Notes, an
instruction, the form of which is attached as an exhibit to the related
Indenture Supplement.
"Permanent Global Note" is defined in Section 205.
"Person" means any individual, corporation, estate, partnership,
limited liability company, limited liability partnership, joint venture,
association, joint-stock company, business trust, statutory trust, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or other entity of a similar nature.
"Place of Payment" means, with respect to any Series, Class or
Tranche of Notes issued hereunder, the city or political subdivision so
designated with respect to such Series, Class or Tranche of Notes in accordance
with the provisions of Section 301.
"Pooling and Servicing Agreement" means a pooling and servicing
agreement, indenture or other agreement for the issuance of securities from time
to time from a Master Trust and the servicing of the receivables in such Master
Trust, as such agreement may be amended, restated and supplemented from time to
time.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a mutilated, lost,
destroyed or stolen Note will be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Payment Date" means, with respect to any Series, Class or
Tranche of Notes, each Expected Principal Payment Date or upon the acceleration
of such Series, Class or Tranche of Notes following an Event of Default or upon
the occurrence of an Early Redemption Event, or other optional or mandatory
redemption of such Series, Class or Tranche of Notes, each Monthly Principal
Accrual Date.
"Ratings Effect" means a reduction, qualification with negative
implications or withdrawal of any then current rating of the Notes (other than
as a result of the termination of a Note Rating Agency).
"Record Date" for the interest or principal payable on any Note on
any applicable Payment Date means the last day of the month before the related
Interest Payment Date or Principal Payment Date, as applicable, unless otherwise
specified in the applicable Indenture Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered Note.
"Required Subordinated Amount" means, with respect to any Tranche of
a Senior Class of Notes, the amount specified in the related Indenture
Supplement.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
13
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
"Security Interest" means the security interest granted pursuant to
the granting clause in any Asset Pool Supplement.
"Senior Class," with respect to a Class of Notes of any Series, is
defined in the related Indenture Supplement.
"Series" means, with respect to any Note, the Series specified in the
applicable Indenture Supplement.
"Series Supplement" means a series supplement to a Pooling and
Servicing Agreement or similar document setting forth the terms of a Collateral
Certificate, as such agreement may be amended, supplemented, restated or
otherwise modified from time to time.
"Standard & Poor's" means Standard & Poor's Ratings Services or any
successor thereto.
"Stated Principal Amount," with respect to any Note, has the meaning
specified in the related Indenture Supplement or Terms Document.
"Sub-Account" means each portion of an Issuer Account designated as
such pursuant to this Indenture, the related Indenture Supplement or the
applicable Asset Pool Supplement.
"Subordinated Class," with respect to a Class of Notes of any Series,
has the meaning specified in the related Indenture Supplement.
"Subordinated Notes" means Notes of a Subordinated Class of a Series.
"Supplemental Credit Enhancement Agreement" means a letter of credit,
cash collateral account or surety bond or other similar arrangement with any
credit enhancement provider which provides the benefit of one or more forms of
credit enhancement which is referenced in the applicable Indenture Supplement
for any Tranche of Notes in an Asset Pool.
"Supplemental Credit Enhancement Provider" means any party to any
Supplemental Credit Enhancement Agreement other than the Issuer or the Indenture
Trustee.
"Supplemental Issuer Accounts" means the trust account or accounts
designated as such and established pursuant to Section 402(a).
"Supplemental Liquidity Agreement" means any liquidity facility or
other liquidity agreement which provides the benefit of liquidity for any
Tranche of Notes in an Asset Pool which is referenced in the applicable
Indenture Supplement for such Tranche of Notes.
"Supplemental Liquidity Provider" means any party to any Supplemental
Liquidity Agreement other than the Issuer or the Indenture Trustee.
14
"Temporary Global Note" is defined in Section 205.
"Terms Document" means, with respect to any Series, Class or Tranche
of Notes, a supplement to the Indenture Supplement that establishes such Class
or Tranche.
"Tranche" means, with respect to any Class of Notes, Notes of such
Class which have identical terms, conditions and Tranche designation. Notes of a
single Tranche may be issued on different dates.
"Transfer and Administration Agreement" means any Transfer and
Administration Agreement between the Issuer, the applicable Transferor or
Transferors, the Administrator and the Indenture Trustee, which by its terms is
identified as being a Transfer and Administration Agreement referred to herein,
as the same may be amended, restated, supplemented or otherwise modified from
time to time.
"Transferor" is defined in the related Transfer and Administration
Agreement.
"Trust Agreement" means the Capital One Multi-asset Execution Trust
Amended and Restated Trust Agreement, dated as of October 9, 2002, between the
Beneficiary and the Owner Trustee, as the same may be amended, supplemented and
modified from time to time.
"Trust Estate" is defined in the Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this Indenture was executed except as provided in Section 905.
"UCC" means the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"United States Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States of America, any one of the states thereof,
the District of Columbia or any political subdivision thereof, or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"U.S. Depository" means, unless otherwise specified by the Issuer
pursuant to any of Section 204, 206 or 301, with respect to Notes of any Tranche
issuable or issued as a Global Note within the United States, The Depository
Trust Company, New York, New York, or any successor thereto registered as a
clearing agency under the Securities Exchange Act, or other applicable statute
or regulation.
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer will furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically
15
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Notwithstanding the provisions of Section 310 and of the preceding
paragraph, if all Notes of a Tranche are not to be originally issued at one
time, it will not be necessary to deliver the Issuer Certificate otherwise
required pursuant to Section 310 or the Officer's Certificate and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or before the
time of authentication of each Note of such Tranche if such documents are
delivered at or prior to the authentication upon original issuance of the first
Note of such Tranche to be issued.
The Indenture Trustee may rely, as to authorization by the Issuer of
any Tranche of Notes, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and the
other documents delivered pursuant to Section 310 and this Section, as
applicable, in connection with the first authentication of Notes of such
Tranche.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 1004) will include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that such individual has made such examination or
investigation as is necessary to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, one or more specified Persons, one such Person may certify or give
an opinion with respect to some matters and one or more other such Persons as to
the other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless the Issuer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations are erroneous.
Any such certificate or opinion of, or representation by, counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, the Issuer stating that the information with respect to such
factual matters is in the possession of the Issuer, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations are erroneous.
16
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action (collectively, "Action") provided by this
Indenture to be given or taken by Noteholders of any Series, Class or Tranche
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by an agent duly appointed
in writing. If Notes of a Series, Class or Tranche are issuable in whole or in
part as Bearer Notes, any Action provided by this Indenture to be given or taken
by such Noteholders may, alternatively, be embodied in and evidenced by the
record of such Noteholders voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Noteholders duly called and
held in accordance with the provisions of Section 804, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such Action will become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments and any such record (and the
Action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Noteholders signing such instrument or instruments and so
voting at any meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding by any Person of a Note, will be
sufficient for any purpose of this Indenture and (subject to Section 701)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 104. The record of any meeting of Noteholders
shall be proved in the manner provided in Section 804.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit will
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Indenture
Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by the
Note Register.
(ii) The ownership of Bearer Notes or coupons will be proved by the
production of such Bearer Notes or coupons or by a certificate,
satisfactory to the Issuer and the Indenture Trustee, executed, as
depositary, by any bank, trust company, recognized securities dealer, as
depositary, wherever situated, satisfactory to the Issuer. Each such
certificate will be dated and will state that on the date thereof a Bearer
Note or coupon bearing a specified serial number was deposited with or
exhibited to such bank, trust company or recognized securities dealer by
the Person named in such certificate. Any such certificate may be issued in
respect of one or more Bearer Notes or coupons
17
specified therein. The holding by the Person named in any such certificate
of any Bearer Note specified therein will be presumed to continue for a
period of one year from the date of such certificate unless at the time of
any determination of such holding (A) another certificate bearing a later
date issued in respect of the same Bearer Note or coupon produced, (B) the
Bearer Note or coupon specified in such certificate is produced by some
other Person or (C) the Bearer Note or coupon specified in such certificate
has ceased to be Outstanding.
(d) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Notes held by the Person so executing such instrument
or writing and the date of holding the same may also be proved in any other
manner which the Indenture Trustee deems sufficient; and the Indenture Trustee
may in any instance require further proof with respect to any of the matters
referred to in this Section.
(e) If the Issuer will solicit from the Holders any Action, the
Issuer may, at its option, by an Officer's Certificate and consistent with the
Trust Indenture Act, fix in advance a record date for the determination of
Holders entitled to give such Action, but the Issuer will have no obligation to
do so. If the Issuer does not so fix a record date, such record date will be the
later of thirty (30) days before the first solicitation of such Action or the
date of the most recent list of Noteholders furnished to the Indenture Trustee
pursuant to Section 801 before such solicitation. Such Action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date will be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Notes Outstanding
have authorized or agreed or consented to such Action, and for that purpose the
Notes Outstanding will be computed as of the record date; provided that no such
authorization, agreement or consent by the Holders on the record date will be
deemed effective unless it will become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
(f) Any Action by the Holder of any Note will bind the Holder of
every Note issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon whether or not notation of such Action
is made upon such Note.
(g) Without limiting the foregoing, a Holder entitled hereunder to
take any Action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount. Any notice given or Action
taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or
taken by separate Holders of each such different part.
(h) Without limiting the generality of the foregoing, unless
otherwise specified pursuant to Section 301 or pursuant to one or more
Indentures Supplements, a Holder, including a Depository that is the Holder of a
Global Note, may make, give or take, by a proxy or proxies duly appointed in
writing, any Action provided in this Indenture to be made, given or taken by
Holders, and a Depository that is the Holder of a Global Note may provide its
proxy or
18
proxies to the beneficial owners of interests in or security entitlements to any
such Global Note through such Depository's standing instructions and customary
practices.
(i) The Issuer may fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in or security entitlements
to any Global Note held by a Depository entitled under the procedures of such
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any Action provided in this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their duly appointed proxy or proxies, and only such Persons, shall be entitled
to make, give or take such Action, whether or not such Holders remain Holders
after such record date. No such Action shall be valid or effective if made,
given or taken more than 90 days after such record date.
Section 105. Notices, etc., to Indenture Trustee and Issuer. Any
Action of Noteholders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with, the Indenture Trustee by
any Noteholder or by the Issuer will be sufficient for every purpose hereunder
if in writing and mailed, first-class postage prepaid or sent via facsimile
transmission to the Indenture Trustee at its Corporate Trust Office, or the
Issuer by the Indenture Trustee or by any Noteholder will be sufficient for
every purpose hereunder (except as provided in Subsection 601(c)) if in writing
and mailed, first-class postage prepaid, to the Issuer addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the
Indenture Trustee by the Issuer.
Section 106. Notices to Noteholders; Waiver.
(a) Where this Indenture, any Asset Pool Supplement, any Indenture
Supplement or any Registered Note provides for notice to Registered Noteholders
of any event, such notice will be sufficiently given (unless otherwise herein,
in such Indenture Supplement or in such Registered Note expressly provided) if
in writing and mailed, first-class postage prepaid, sent by facsimile, sent by
electronic transmission or personally delivered to each Holder of a Registered
Note affected by such event, at such Noteholder's address as it appears in the
Note Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Registered Noteholders is given by mail, facsimile, electronic transmission or
delivery neither the failure to mail, send by facsimile, send by electronic
transmission or deliver such notice, nor any defect in any notice so mailed, to
any particular Noteholders will affect the sufficiency of such notice with
respect to other Noteholders and any notice that is mailed, sent by facsimile,
sent by electronic transmission or delivered in the manner herein provided shall
conclusively have been presumed to have been duly given.
Where this Indenture, any Asset Pool Supplement, any Indenture
Supplement or any Registered Note provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver will be the equivalent of such
notice. Waivers of notice by Registered Noteholders will be filed with the
Indenture Trustee, but such filing will not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or otherwise, it will be impractical to mail
notice of any event to any
19
Holder of a Registered Note when such notice is required to be given pursuant to
any provision of this Indenture, then any method of notification as will be
satisfactory to the Indenture Trustee and the Issuer will be deemed to be a
sufficient giving of such notice.
(c) No notice will be given by mail, facsimile, electronic
transmission or otherwise delivered to a Holder of Bearer Notes or coupons in
bearer form. In the case of any Series, Class or Tranche with respect to which
any Bearer Notes are Outstanding, any notice required or permitted to be given
to Holders of such Bearer Notes will be published in an Authorized Newspaper
within the time period prescribed in this Indenture or the applicable Indenture
Supplement.
(d) With respect to any Series, Class or Tranche of Notes, the
applicable Indenture Supplement may specify different or additional means of
giving notice to the Holders of the Notes of such Series, Class or Tranche.
(e) Where this Indenture provides for notice to any Note Rating
Agency, failure to give such notice will not affect any other rights or
obligations created hereunder and will not under any circumstance constitute an
Adverse Effect.
Section 107. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the Trust Indenture Act, such imposed duties or incorporated provision will
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision will be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
Section 108. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and will not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuer will bind its successors and assigns, whether so
expressed or not. All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents of the Indenture
Trustee.
Section 110. Severability of Provisions. In case any provision in
this Indenture or in the Notes will be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or in
any Notes, express or implied, will give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Note Registrar, Derivative Counterparties (to the extent specified in the
applicable Derivative Agreement), Supplemental Credit Enhancement Providers and
Supplemental Liquidity Providers (each to the extent specified in the applicable
Supplemental Credit Enhancement Agreement and Supplemental Liquidity Agreement,
as applicable) and the Holders of Notes (or such of them as may be affected
thereby), any benefit or any legal or equitable right, remedy or claim under
this Indenture.
20
Section 112. Governing Law. THIS INDENTURE WILL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATION LAW, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 113. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed will be deemed to be an
original, but all such counterparts will together constitute but one and the
same instrument.
Section 114. Indenture Referred to in the Trust Agreement. This is
the Indenture referred to in the Trust Agreement.
Section 115. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
[END OF ARTICLE I]
21
ARTICLE II
NOTE FORMS
Section 201. Forms Generally. The Notes will have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or the applicable Indenture Supplement and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with applicable laws
or regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Issuer, as evidenced by the Issuer's
execution of such Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
The definitive Notes will be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders) or may be produced in any other manner, all as determined by
the Issuer, as evidenced by the Issuer's execution of such Notes, subject, with
respect to the Notes of any Series, Class or Tranche, to the rules of any
securities exchange on which such Notes are listed.
Section 202. Forms of Notes. Each Note will be in one of the forms
approved from time to time by or pursuant to an Indenture Supplement. Before the
delivery of a Note to the Indenture Trustee for authentication in any form
approved by or pursuant to an Issuer Certificate, the Issuer will deliver to the
Indenture Trustee the Issuer Certificate by or pursuant to which such form of
Note has been approved, which Issuer Certificate will have attached thereto a
true and correct copy of the form of Note which has been approved thereby or, if
an Issuer Certificate authorizes a specific officer or officers of the
Beneficiary to approve a form of Note, a certificate of such officer or officers
approving the form of Note attached thereto. Any form of Note approved by or
pursuant to an Issuer Certificate must be acceptable as to form to the Indenture
Trustee, such acceptance to be evidenced by the Indenture Trustee's
authentication of Notes in that form or a certificate signed by an Indenture
Trustee Authorized Officer and delivered to the Issuer.
Section 203. Form of Indenture Trustee's Certificate of
Authentication. The form of Indenture Trustee's Certificate of Authentication
for any Note issued pursuant to this Indenture will be substantially as follows:
22
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Series, Class or Tranche designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Indenture Trustee,
By:
______________________________________
Authorized Signatory
Dated:____________________________________
Section 204. Notes Issuable in the Form of a Global Note.
(a) If the Issuer establishes pursuant to Sections 202 and 301 that
the Notes of a particular Series, Class or Tranche are to be issued in whole or
in part in the form of one or more Global Notes, then the Issuer will execute
and the Indenture Trustee or its agent will, in accordance with Section 303 and
the Issuer Certificate delivered to the Indenture Trustee or its agent
thereunder, authenticate and deliver, such Global Note or Notes, which, unless
otherwise provided in the applicable Indenture Supplement (i) will represent,
and will be denominated in an amount equal to the aggregate Stated Principal
Amount (or in the case of Discount Notes, the aggregate Stated Principal Amount
at the Expected Principal Payment Date of such Notes) of the Outstanding Notes
of such Series, Class or Tranche to be represented by such Global Note or Notes,
or such portion thereof as the Issuer will specify in an Issuer Certificate,
(ii) in the case of Registered Notes, will be registered in the name of the
Depository for such Global Note or Notes or its nominee, (iii) will be delivered
by the Indenture Trustee or its agent to the Depository or pursuant to the
Depository's instruction, (iv) if applicable, will bear a legend substantially
to the following effect: "Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge or other use hereof for value or
otherwise by or to any person is wrongful inasmuch as the registered owner
hereof, Cede & Co., has an interest herein" and (v) may bear such other legend
as the Issuer, upon advice of counsel, deems to be applicable.
(b) Notwithstanding any other provisions of this Section 204 or of
Section 305, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Note or the applicable Indenture Supplement expressly permit
such Global Note to be exchanged in whole or in part for individual Notes, a
Global Note may be transferred, in whole but not in part and in the manner
provided in Section 305, only to a nominee of the Depository for such Global
Note, or to the Depository, or a successor Depository for such Global Note
selected or approved by the Issuer, or to a nominee of such successor
Depository.
23
(c) With respect to Notes issued within the United States, unless
otherwise specified in the applicable Indenture Supplement, or with respect to
Notes issued outside the United States, if specified in the applicable Indenture
Supplement:
(i) If at any time the Depository for a Global Note notifies
the Issuer that it is unwilling or unable to continue as Depository for
such Global Note or if at any time the Depository for the Notes for such
Series, Class or Tranche ceases to be a clearing agency registered under
the Securities Exchange Act, or other applicable statute or regulation, the
Issuer will appoint a successor Depository with respect to such Global
Note. If a successor Depository for such Global Note is not appointed by
the Issuer within ninety (90) days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer will execute, and the
Indenture Trustee or its agent, upon receipt of an Issuer Certificate
requesting the authentication and delivery of individual Notes of such
Series, Class or Tranche in exchange for such Global Note, will
authenticate and deliver, individual Notes of such Series, Class or Tranche
of like tenor and terms in an aggregate Stated Principal Amount equal to
the Stated Principal Amount of the Global Note in exchange for such Global
Note.
(ii) The Issuer may at any time and in its sole discretion
determine that the Notes of any Series, Class or Tranche or portion thereof
issued or issuable in the form of one or more Global Notes will no longer
be represented by such Global Note or Notes. In such event the Issuer will
execute, and the Indenture Trustee, upon receipt of a written request by
the Issuer for the authentication and delivery of individual Notes of such
Series, Class or Tranche in exchange in whole or in part for such Global
Note, will authenticate and deliver individual Notes of such Series, Class
or Tranche of like tenor and terms in definitive form in an aggregate
Stated Principal Amount equal to the Stated Principal Amount of such Global
Note or Notes representing such Series, Class or Tranche or portion thereof
in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 202 and 301
with respect to Notes issued or issuable in the form of a Global Note, the
Depository for such Global Note may surrender such Global Note in exchange
in whole or in part for individual Notes of such Series, Class or Tranche
of like tenor and terms in definitive form on such terms as are acceptable
to the Issuer and such Depository. Thereupon the Issuer will execute, and
the Indenture Trustee or its agent will authenticate and deliver, without
service charge, (A) to each Person specified by such Depository a new Note
or Notes of the same Series, Class or Tranche of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate
Stated Principal Amount equal to and in exchange for such Person's
beneficial interest in the Global Note; and (B) to such Depository a new
Global Note of like tenor and terms and in an authorized denomination equal
to the difference, if any, between the Stated Principal Amount of the
surrendered Global Note and the aggregate Stated Principal Amount of Notes
delivered to the Holders thereof.
(iv) If any Event of Default has occurred and is continuing with
respect to such Global Notes, and Holders of Notes evidencing more than 50%
of the unpaid Outstanding Dollar Principal Amount of the Global Notes of
that Series, Class or Tranche advise the Indenture Trustee and the
Depository that a Global Note is no longer in the
24
best interest of the Noteholders, the Holders of Global Notes of that
Tranche may exchange such Notes for individual Notes.
(v) In any exchange provided for in any of the preceding four
paragraphs, the Issuer will execute and the Indenture Trustee or its agent
will authenticate and deliver individual Notes in definitive registered
form in authorized denominations. Upon the exchange of the entire Stated
Principal Amount of a Global Note for individual Notes, such Global Note
will be canceled by the Indenture Trustee or its agent. Except as provided
in the preceding paragraphs, Notes issued in exchange for a Global Note
pursuant to this Section will be registered in such names and in such
authorized denominations as the Depository for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise, will
instruct the Indenture Trustee or the Note Registrar. The Indenture Trustee
or the Note Registrar will deliver such Notes to the Persons in whose names
such Notes are so registered.
Section 205. Temporary Global Notes and Permanent Global Notes.
(a) If specified in the applicable Indenture Supplement for any
Tranche, all or any portion of a Global Note may initially be issued in the form
of a single temporary global Bearer Note or Registered Note (the "Temporary
Global Note"), without interest coupons, in the denomination of the entire
aggregate principal amount of such Series, Class or Tranche and substantially in
the form set forth in the exhibit with respect thereto attached to the
applicable Indenture Supplement. The Temporary Global Note will be authenticated
by the Indenture Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Notes in definitive form. The Temporary
Global Note may be exchanged as described below or in the applicable Indenture
Supplement for permanent global Bearer Notes or Registered Notes (the "Permanent
Global Notes").
(b) Unless otherwise provided in the applicable Indenture Supplement,
exchanges of beneficial interests in or security entitlements to Temporary
Global Notes for beneficial interests in or security entitlements to Permanent
Global Notes will be made as provided in this clause. The Beneficiary will, upon
its determination of the date of completion of the distribution of the Notes of
such Series, Class or Tranche, so advise the Indenture Trustee, the Issuer, the
Foreign Depository, and each foreign clearing agency forthwith. Without
unnecessary delay, but in any event not prior to the Exchange Date, the Issuer
will execute and deliver to the Indenture Trustee at the office of its
designated agent outside the United States Permanent Global Notes in bearer or
registered form (as specified in the applicable Indenture Supplement) in an
aggregate principal amount equal to the Outstanding Dollar Principal Amount of
such Series, Class or Tranche of Notes. Bearer Notes so issued and delivered may
have coupons attached. The Temporary Global Note may be exchanged for an equal
aggregate principal amount of Permanent Global Notes only on or after the
Exchange Date. A United States Person may exchange its beneficial interest in or
security entitlement to the Temporary Global Note only for an equal aggregate
principal amount of Permanent Global Notes in registered form bearing the
applicable legend set forth in the form of Registered Note attached to the
applicable Indenture Supplement and having a minimum denomination of $500,000,
which may be in temporary form if the Issuer so elects. The Issuer may waive the
$500,000 minimum denomination requirement if it so elects. Upon any demand for
exchange for Permanent Global Notes in accordance with this clause, the Issuer
will cause the Indenture Trustee to authenticate
25
and deliver the Permanent Global Notes to the Holder (x) outside the United
States, in the case of Bearer Notes and (y) according to the instructions of the
Holder, in the case of Registered Notes, but in either case only upon
presentation to the Indenture Trustee of a written statement substantially in
the form of Exhibit B-1 (or such other form as the Issuer may determine) with
respect to the Temporary Global Note, or portion thereof being exchanged, signed
by a foreign clearing agency or Foreign Depository and dated the Exchange Date
or a subsequent date, to the effect that it has received in writing or by tested
telex a certification substantially in the form of (i) in the case of beneficial
ownership of the Temporary Global Note, or a portion thereof being exchanged, by
a United States institutional investor pursuant to this clause, the certificate
in the form of Exhibit B-2 (or such other form as the Issuer may determine)
signed by the Beneficiary which sold the relevant Notes or (ii) in all other
cases, the certificate in the form of Exhibit B-3 (or such other form as the
Issuer may determine), the certificate referred to in this clause (ii) being
dated on the earlier of the first payment of interest in respect of such Note
and the date of the delivery of such Note in definitive form. Upon receipt of
such certification, the Indenture Trustee will cause the Temporary Global Note
to be endorsed in accordance with clause (d). Any exchange as provided in this
Section will be made free of charge to the Holders and the beneficial owners of
the Temporary Global Note and to the beneficial owners of the Permanent Global
Note issued in exchange, except that a Person receiving the Permanent Global
Note must bear the cost of insurance, postage, transportation and the like in
the event that such Person does not receive such Permanent Global Note in person
at the offices of a foreign clearing agency or Foreign Depository.
(c) The delivery to the Indenture Trustee by a foreign clearing
agency or Foreign Depository of any written statement referred to above may be
relied upon by the Issuer and the Indenture Trustee as conclusive evidence that
a corresponding certification or certifications has or have been delivered to
such foreign clearing agency pursuant to the terms of this Indenture.
(d) Upon any such exchange of all or a portion of the Temporary
Global Note for a Permanent Global Note or Notes, such Temporary Global Note
will be endorsed by or on behalf of the Indenture Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Permanent Global Note or Notes. Until so exchanged in full, such
Temporary Global Note will in all respects be entitled to the same benefits
under this Indenture as Permanent Global Notes authenticated and delivered
hereunder except that the beneficial owners of such Temporary Global Note will
not be entitled to receive payments of interest on the Notes until they have
exchanged their beneficial interests or security entitlements to in such
Temporary Global Note for Permanent Global Notes.
Section 206. Beneficial Ownership of Global Notes. Until definitive
Notes have been issued to the applicable Noteholders pursuant to Section 204 or
as otherwise specified in any applicable Indenture Supplement:
(a) the Issuer and the Indenture Trustee may deal with the applicable
clearing agency or Depository and the clearing agency's or Depository's
participants for all purposes (including the making of distributions) as the
authorized representatives of the respective Note Owners; and
26
(b) the rights of the respective Note Owners will be exercised only
through the applicable clearing agency or Depository and the clearing agency's
or Depository's participants and will be limited to those established by law and
agreements between such Note Owners and the clearing agency or Depository and/or
the clearing agency's or Depository's participants. Pursuant to the operating
rules of the applicable clearing agency, unless and until Notes in definitive
form are issued pursuant to Section 204, the clearing agency or Depository will
make book-entry transfers among the clearing agency's or Depository's
participants and receive and transmit distributions of principal and interest on
the related Notes to such clearing agency's or Depository's participants.
For purposes of any provision of this Indenture requiring or
permitting actions with the consent of, or at the direction of, Noteholders
evidencing a specified percentage of the Outstanding Dollar Principal Amount of
Outstanding Notes, such direction or consent may be given by Note Owners (acting
through the clearing agency and the clearing agency's participants) owning
interests in or security entitlements to Notes evidencing the requisite
percentage of principal amount of Notes.
Section 207. Notices to Depository. Whenever any notice or other
communication is required to be given to Noteholders with respect to which
book-entry Notes have been issued, unless and until Notes in definitive form
will have been issued to the related Note Owners, the Indenture Trustee will
give all such notices and communications to the applicable clearing agency or
Depository.
[END OF ARTICLE II]
27
ARTICLE III
THE NOTES
Section 301. General Title; General Limitations; Issuable in Series;
Terms of a Series, Class or Tranche of Notes.
(a) The aggregate Stated Principal Amount of Notes which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
(b) The Notes may be issued in one or more Series, Classes or
Tranches up to an aggregate Stated Principal Amount of Notes as from time to
time may be authorized by the Issuer. All Notes of each Series, Class or Tranche
under this Indenture will in all respects be equally and ratably entitled to the
benefits hereof with respect to such Series, Class or Tranche without
preference, priority or distinction on account of (i) the actual time of the
authentication and delivery, (ii) Expected Principal Payment Date or (iii) Legal
Maturity Date of the Notes of such Series, Class or Tranche, except as specified
in the applicable Indenture Supplement for such Series, Class or Tranche of
Notes.
(c) Each Note issued must be part of a Series, Class and Tranche of
Notes for purposes of allocations pursuant to the related Asset Pool Supplement
and the related Indenture Supplement. A Series of Notes is created pursuant to
an Indenture Supplement. A Class or Tranche of Notes is created pursuant to an
Indenture Supplement or pursuant to a Terms Document, each related to the
Indenture Supplement for the applicable Series.
(d) Each Series of Notes will be secured by a particular Asset Pool.
The related Indenture Supplement will identify the Asset Pool under which a
Series of Notes has been issued.
(e) Each Series of Notes may be assigned to a Group or Groups (now
existing or hereafter created) of Notes for purposes of allocations of certain
collections pursuant to the related Asset Pool Supplement or the related
Indenture Supplement. The related Indenture Supplement will identify the Group
or Groups, if any, to which a Series of Notes has been assigned and the manner
and extent to which Series in the same Group will share certain amounts.
(f) Each Series of Notes may, but need not be, subdivided into
multiple Classes. Notes belonging to a Class in any Series may be entitled to
specified payment priorities over other Classes of Notes in that Series.
(g) Notes of a Series that belong to different Classes in that Series
belong to different Tranches on the basis of the difference in Class membership.
(h) Each Class of Notes may consist of a single Tranche or may be
subdivided into multiple Tranches. Notes of a single Class of a Series will
belong to different Tranches if they have different terms and conditions. With
respect to any Class of Notes, Notes which have identical terms, conditions and
Tranche designation will be deemed to be part of a single Tranche.
28
(i) Before the initial issuance of Notes of each Series, Class or Tranche,
there shall also be established in or pursuant to an Indenture Supplement or
pursuant to a Terms Document related to the applicable Indenture Supplement,
provision for:
(i) the Series designation;
(ii) the Asset Pool designation;
(iii) the Stated Principal Amount of the Notes;
(iv) whether such Series belongs to any Group or Groups;
(v) whether such Notes are of a particular Class of Notes or a
Tranche of a Class of Notes;
(vi) the Required Subordinated Amount (if any) for such Class or
Tranche of Notes;
(vii) the currency or currencies in which such Notes will be
denominated and in which payments of principal of, and interest on, such
Notes will or may be payable;
(viii) if the principal of or interest, if any, on such Notes are to
be payable, at the election of the Issuer or a Holder thereof, in a
currency or currencies other than that in which the Notes are stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(ix) if the amount of payments of principal of or interest, if any,
on such Notes may be determined with reference to an index based on (A) a
currency or currencies other than that in which the Notes are stated to be
payable, (B) changes in the prices of one or more other securities or
Groups or indexes of securities or (C) changes in the prices of one or more
commodities or Groups or indexes of commodities, or any combination of the
foregoing, the manner in which such amounts will be determined;
(x) the price or prices at which such Series, Class or Tranche of
the Notes will be issued;
(xi) the times at which such Series, Class or Tranche of Notes may,
pursuant to any optional or mandatory redemption provisions, be redeemed,
and the other terms and provisions of any such redemption provisions;
(xii) the rate per annum at which such Series, Class or Tranche of
Notes will bear interest, if any, or the formula or index on which such
rate will be determined, including all relevant definitions, and the date
from which interest will accrue;
(xiii) each Interest Payment Date, Expected Principal Payment Date and
the Legal Maturity Date for such Series, Class or Tranche of Notes;
29
(xiv) the Initial Dollar Principal Amount of such Series, Class or
Tranche of Notes, and the means for calculating the Outstanding Dollar
Principal Amount of such Series, Class or Tranche of Notes;
(xv) the Nominal Liquidation Amount of such Series, Class or
Tranche of Notes, and the means for calculating the Nominal Liquidation
Amount of such Series, Class or Tranche of Notes;
(xvi) whether or not application will be made to list such Series,
Class or Tranche of Notes on any securities exchange;
(xvii) any Events of Default or Early Redemption Events with respect
to such Series, Class or Tranche of Notes, if not set forth herein and any
additions, deletions or other changes to the Events of Default or Early
Redemption Events set forth herein that will be applicable to such Series,
Class or Tranche of Notes (including a provision making any Event of
Default or Early Redemption Event set forth herein inapplicable to the
Notes of that Series, Class or Tranche);
(xviii) the appointment by the Indenture Trustee of an Authenticating
Agent in one or more places other than the location of the office of the
Indenture Trustee with power to act on behalf of the Indenture Trustee and
subject to its direction in the authentication and delivery of such Notes
in connection with such transactions as will be specified in the provisions
of this Indenture or in or pursuant to the applicable Indenture Supplement
creating such Series, Class or Tranche;
(xix) if such Series, Class or Tranche of Notes will be issued in
whole or in part in the form of a Global Note or Global Notes, the terms
and conditions, if any, upon which such Global Note or Global Notes may be
exchanged in whole or in part for other individual Notes; and the
Depository for such Global Note or Global Notes (if other than the
Depository specified in Section 101);
(xx) if such Series, Class or Tranche of Notes will be issued in
whole or in part as Registered Notes, Bearer Notes or both, whether such
Series, Class or Tranche of Notes are to be issued with or without coupons
or both;
(xxi) the subordination of such Series, Class or Tranche of Notes to
any other indebtedness of the Issuer, including without limitation, the
Notes of any other Series, Class or Tranche;
(xxii) if such Series, Class or Tranche of Notes are to have the
benefit of any Derivative Agreement, the terms and provisions of such
agreement;
(xxiii) if such Series, Class or Tranche of Notes are to have the
benefit of any Supplemental Credit Enhancement Agreement or Supplemental
Liquidity Agreement, the terms and provisions of the applicable agreement;
(xxiv) the Record Date for any Payment Date of such Series, Class or
Tranche of Notes, if different from the last day of the month before the
related Payment Date;
30
(xxv) the amount scheduled to be deposited on each Principal
Payment Date during an amortization period or accumulation period for
such Series, Class or Tranche of Notes;
(xxvi) whether and under what conditions, additional amounts
will be payable to Noteholders; and
(xxvii) any other terms of such Notes as stated in the related
Indenture Supplement;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such Series, Class or Tranche of Notes.
(j) The form of the Notes of each Series, Class or Tranche will be
established pursuant to the provisions of this Indenture and the related
Indenture Supplement or Terms Document creating such Series, Class or Tranche.
The Notes of each Series, Class or Tranche will be distinguished from the Notes
of each other Series, Class or Tranche in such manner, reasonably satisfactory
to the Indenture Trustee, as the Issuer may determine.
(k) Any terms or provisions in respect of the Notes of any Series,
Class or Tranche issued under this Indenture may be determined pursuant to this
Section by providing in the applicable Indenture Supplement for the method by
which such terms or provisions will be determined.
Section 302. Denominations. The Notes of each Series, Class or
Tranche will be issuable in such denominations and currency as will be provided
in the provisions of this Indenture or in or pursuant to the applicable
Indenture Supplement. In the absence of any such provisions with respect to the
Registered Notes of any Series, Class or Tranche, the Registered Notes of that
Series, Class or Tranche will be issued in denominations of $1,000 and multiples
thereof. In the absence of any such provisions with respect to the Bearer Notes
of any Series, Class or Tranche, the Bearer Notes of that Series, Class or
Tranche will be issued in denominations of 1,000, 5,000, 50,000 and 100,000
units of the applicable currency.
Section 303. Execution, Authentication and Delivery and Dating.
(a) The Notes will be executed on behalf of the Issuer by an Issuer
Authorized Officer. The signature of any officer of the Beneficiary or the Owner
Trustee on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signatures of individuals
who were at any time an Issuer Authorized Officer will bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices before the authentication and delivery of such Notes or did not hold
such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer
to the Indenture Trustee for authentication; and the Indenture Trustee will,
upon request by an Officer's Certificate, authenticate and deliver such Notes as
in this Indenture provided and not otherwise.
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(d) Before any such authentication and delivery, the Indenture
Trustee will be entitled to receive, in addition to any Officer's Certificate
and Opinion of Counsel required to be furnished to the Indenture Trustee
pursuant to Section 102, the Issuer Certificate and any other opinion or
certificate relating to the issuance of the Series, Class or Tranche of Notes
required to be furnished pursuant to Section 202 or Section 310.
(e) The Indenture Trustee will not be required to authenticate such
Notes if the issue thereof will adversely affect the Indenture Trustee's own
rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any Series,
Class or Tranche, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
Certificate of Authentication substantially in the form provided for herein
executed by the Indenture Trustee by manual signature of an authorized
signatory, and such certificate upon any Note will be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 304. Temporary Notes.
(a) Pending the preparation of definitive Notes of any Series, Class
or Tranche, the Issuer may execute, and, upon receipt of the documents required
by Section 303, together with an Officer's Certificate, the Indenture Trustee
will authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Issuer may determine, as evidenced by the Issuer's execution
of such Notes.
(b) If temporary Notes of any Series, Class or Tranche are issued,
the Issuer will cause definitive Notes of such Series, Class or Tranche to be
prepared without unreasonable delay. After the preparation of definitive Notes,
the temporary Notes of such Series, Class or Tranche will be exchangeable for
definitive Notes of such Series, Class or Tranche upon surrender of the
temporary Notes of such Series, Class or Tranche at the office or agency of the
Issuer in a Place of Payment, without charge to the Holder; and upon surrender
for cancellation of any one or more temporary Notes the Issuer will execute and
the Indenture Trustee will authenticate and deliver in exchange therefor a like
Stated Principal Amount of definitive Notes of such Series, Class or Tranche of
authorized denominations and of like tenor and terms. Until so exchanged the
temporary Notes of such Series, Class or Tranche will in all respects be
entitled to the same benefits under this Indenture as definitive Notes of such
Series, Class or Tranche.
Section 305. Registration, Transfer and Exchange.
(a) The Issuer will keep or cause to be kept a register (herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer will provide for the
registration of Registered Notes, or of Registered Notes of a particular Series,
Class or Tranche, and for transfers of Registered Notes or of Registered
32
Notes of such Tranche. Any such register will be in written form or in any other
form capable of being converted into written form within a reasonable time. At
all reasonable times the information contained in such register or registers
will be available for inspection by the Indenture Trustee at the office or
agency to be maintained by the Issuer as provided in Section 1002.
(b) Subject to Section 204, upon surrender for transfer of any
Registered Note of any Series, Class or Tranche at the office or agency of the
Issuer in a Place of Payment, if the requirements of Section 8-401(a) of the UCC
are met, the Issuer will execute, and, upon receipt of such surrendered Note,
the Indenture Trustee will authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Notes of such
Series, Class or Tranche of any authorized denominations, of a like aggregate
Stated Principal Amount, Expected Principal Payment Date and Legal Maturity Date
and of like terms.
(c) Subject to Section 204, at the option of the Holder, Notes of any
Series, Class or Tranche may be exchanged for other Notes of such Series, Class
or Tranche of any authorized denominations, of a like aggregate Stated Principal
Amount, Expected Principal Payment Date and Legal Maturity Date and of like
terms, upon surrender of the Notes to be exchanged at such office or agency.
Registered Notes, including Registered Notes received in exchange for Bearer
Notes, may not be exchanged for Bearer Notes. At the option of the Holder of a
Bearer Note, subject to applicable laws and regulations, Bearer Notes may be
exchanged for other Bearer Notes or Registered Notes (of the same Series, Class
and Tranche of Notes) of authorized denominations of like aggregate fractional
undivided interests in the Noteholders' interest, upon surrender of the Bearer
Notes to be exchanged at an office or agency of the Note Registrar located
outside the United States. Each Bearer Note surrendered pursuant to this Section
will have attached thereto all unmatured coupons; provided, however, that any
Bearer Note so surrendered after the close of business on the last day of the
month preceding the relevant Payment Date need not have attached the coupon
relating to such Payment Date. Whenever any Notes are so surrendered for
exchange, the Issuer will execute, and the Indenture Trustee will authenticate
and deliver (in the case of Bearer Notes, outside the United Sates), the Notes
which the Noteholders making the exchange are entitled to receive.
(d) All Notes issued upon any transfer or exchange of Notes will be
the valid and legally binding obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or exchange will
(if so required by the Issuer or the Indenture Trustee) be duly indorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
(f) Unless otherwise provided in the Note to be transferred or
exchanged, no service charge will be made on any Noteholder for any transfer or
exchange of Notes, but the Issuer may (unless otherwise provided in such Note)
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Notes
before the transfer or exchange will be complete, other than exchanges pursuant
to Section 304 or 906 not involving any transfer.
33
(g) None of the Issuer, the Note Registrar or the Indenture Trustee
shall be required (i) to issue, register the transfer of or exchange any Notes
of any Series, Class or Tranche during a period beginning at the opening of
business 15 days before the day of selection of Notes of such Series, Class or
Tranche to be redeemed and ending at the close of business on (A) if Notes of
such Series, Class or Tranche are issuable only as Registered Notes, the day of
the mailing of the relevant notice of redemption of Registered Notes of such
Series, Class or Tranche so selected for redemption or (B) if Notes of the
Series, Class or Tranche are issuable as Bearer Notes, the day of the first
publication of the relevant notice of redemption or, if Notes of the Series,
Class or Tranche are also issuable as Registered Notes and there is no
publication, the mailing of the relevant notice of redemption or (ii) to
register the transfer or exchange of any Notes or portions thereof so selected
for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Notes into Registered Notes shall be subject to applicable laws and
regulations in effect at the time of exchange; none of the Issuer, the Indenture
Trustee or the Note Registrar shall exchange any Bearer Notes into Registered
Notes if it has received an Opinion of Counsel that as a result of such
exchanges the Issuer or any Transferor would suffer adverse consequences under
the United States federal income tax laws and regulations then in effect and the
Issuer has delivered to the Indenture Trustee an Issuer Certificate directing
the Indenture Trustee not to make such exchanges unless and until the Indenture
Trustee receives a subsequent Issuer Certificate to the contrary. The Issuer
shall deliver copies of such Issuer Certificates to the Note Registrar.
(g) None of the Issuer, the Indenture Trustee, any agent of the
Indenture Trustee, any Paying Agent or the Note Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership of a Global Note or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership.
(h) The Issuer initially appoints The Bank of New York to act as Note
Registrar for the Registered Notes on its behalf. The Issuer may at any time and
from time to time authorize any Person to act as Note Registrar in place of the
Indenture Trustee with respect to any Series, Class or Tranche of Notes issued
under this Indenture.
(i) Registration of transfer of Notes containing the following legend
or to which the following legend is applicable:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION
HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT
AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES
LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION
PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN."
34
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption from the
registration requirements under the Securities Act other than Rule 144A under
the Securities Act or Rule 903 or Rule 904 of Regulation S under the Securities
Act, the transferor or the transferee will deliver, at its expense, to the
Issuer and the Indenture Trustee, an investment letter from the transferee,
substantially in the form of the investment letter attached hereto as Exhibit C
or such other form as the Issuer may determine, and no registration of transfer
will be made until such letter is so delivered.
Notes issued upon registration or transfer of, or Notes issued in
exchange for, Notes bearing the legend referred to above will also bear such
legend unless the Issuer, the Indenture Trustee and the Note Registrar receive
an Opinion of Counsel, satisfactory to each of them, to the effect that such
legend may be removed.
Whenever a Note containing the legend referred to above is presented
to the Note Registrar for registration of transfer, the Note Registrar will
promptly seek instructions from the Issuer regarding such transfer and will be
entitled to receive an Issuer Certificate prior to registering any such
transfer. The Issuer hereby agrees to indemnify the Note Registrar and the
Indenture Trustee and to hold each of them harmless against any loss, liability
or expense incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by them in relation to any such
instructions furnished pursuant to this clause. The Indenture Trustee shall have
no obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note (together, in the case of Bearer Notes,
with all unmatured coupons, if any, appertaining thereto) is surrendered to the
Indenture Trustee or the Note Registrar, or the Issuer, the Note Registrar or
the Indenture Trustee receive evidence to their satisfaction of the destruction,
loss or theft of any Note, and (ii) there is delivered to the Issuer, the Note
Registrar or the Indenture Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a protected purchaser, the Issuer will execute and upon its request
the Indenture Trustee will authenticate and deliver (in the case of Bearer
Notes, outside the United States), in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a new Note of like tenor, Series,
Class or Tranche, Expected Principal Payment Date, Legal Maturity Date and
Stated Principal Amount, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Note, pay such Note.
35
(c) Upon the issuance of any new Note under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
(d) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note will constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note will be at any time enforceable by anyone, and will be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of the same Series, Class or Tranche duly issued hereunder.
(e) The provisions of this Section are exclusive and will preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 307. Payment of Interest; Interest Rights Preserved;
Withholding Taxes.
(a) Unless otherwise provided with respect to such Note pursuant to
Section 301, interest payable on any Registered Note will be paid to the Person
in whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the most recent Record Date and interest payable on any
Bearer Note will be paid to the bearer of that Note (or the applicable coupon).
(b) Subject to clause (a), each Note delivered under this Indenture
upon transfer of or in exchange for or in lieu of any other Note will carry the
rights to interest accrued or principal accreted and unpaid, and to accrue or
accrete, which were carried by such other Note.
(c) The right of any Noteholder to receive interest on or principal
of any Note shall be subject to any applicable withholding or deduction imposed
pursuant to the Internal Revenue Code or other applicable tax law, including
foreign withholding and deduction. Any amounts properly so withheld or deducted
shall be treated as actually paid to the appropriate Noteholder.
Section 308. Persons Deemed Owners. Title to any Bearer Note,
including any coupons appertaining thereto, shall pass by delivery. The Issuer,
the Indenture Trustee, the Owner Trustee, the Beneficiary and any agent of the
Issuer, the Indenture Trustee, the Owner Trustee or the Beneficiary may treat
the Person who is proved to be the owner of such Note pursuant to Subsection
104(c) as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Section 307) interest on such Note and for all
other purposes whatsoever, whether or not such Note is overdue, and neither the
Issuer, the Indenture Trustee, the Owner Trustee, nor any agent of the Issuer,
the Indenture Trustee, the Owner Trustee or the Beneficiary will be affected by
notice to the contrary.
Section 309. Cancellation. All Notes surrendered for payment,
redemption, transfer, conversion or exchange will, if surrendered to any Person
other than the Indenture Trustee, be delivered to the Indenture Trustee and, if
not already canceled, will be promptly canceled by it. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in
36
any manner whatsoever, and all Notes so delivered will be promptly canceled by
the Indenture Trustee. No Note will be authenticated in lieu of or in exchange
for any Notes canceled as provided in this Section, except as expressly
permitted by this Indenture. The Indenture Trustee will dispose of all canceled
Notes in accordance with its customary procedures and will deliver a certificate
of such disposition to the Issuer.
Section 310. New Issuances of Notes.
(a) Unless otherwise specified in the related Indenture Supplement,
the Issuer may issue new Notes of any Series, Class or Tranche, so long as the
following conditions precedent are satisfied:
(i) on or prior to the third Business Day before the date that the new
issuance is to occur, the Issuer delivers to the Indenture Trustee and each
Note Rating Agency notice of such new issuance;
(ii) on or prior to the date that the new issuance is to occur, the
Issuer delivers to the Indenture Trustee and each Note Rating Agency an
Issuer Certificate to the effect that:
(A) the Issuer reasonably believes that the new issuance will not
cause an Adverse Effect on any Outstanding Notes;
(B) all instruments furnished to the Indenture Trustee conform to
the requirements of this Indenture and constitute sufficient authority
hereunder for the Indenture Trustee to authenticate and deliver such
Notes;
(C) the form and terms of such Notes have been established in
conformity with the provisions of this Indenture; and
(D) such other matters as the Indenture Trustee may reasonably
request;
(iii) on or prior to the date that the new issuance is to occur, the
Issuer will have delivered to the Indenture Trustee and each Note Rating
Agency an Opinion of Counsel, which may be from internal counsel of the
Issuer, that all laws and requirements with respect to the execution and
delivery by the Issuer of such Notes have been complied with, the Issuer
has the trust power and authority to issue such Notes and such Notes have
been duly authorized and delivered by the Issuer and, assuming due
authentication and delivery by the Indenture Trustee, constitute legal,
valid and binding obligations of the Issuer enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors' rights generally from time to time in
effect and to general equitable principles, whether applied in an action at
law or in equity) and are entitled to the benefits of this Indenture,
equally and ratably with all other Outstanding Notes, if any, of such
Series, Class or Tranche, subject to the terms of this Indenture, each
Indenture Supplement and each Terms Document;
37
(iv) on or prior to the date that the new issuance is to occur, the
Issuer will have delivered to the Indenture Trustee and the Note Rating
Agencies a Master Trust Tax Opinion for each applicable Master Trust and an
Issuer Tax Opinion with respect to such issuance;
(v) if any additional conditions to the new issuance are specified
in writing by a Note Rating Agency to the Issuer, either (A) the Issuer
satisfies such conditions or (B) the Issuer obtains confirmation from the
applicable Note Rating Agency that the new issuance will not have a Ratings
Effect on any Outstanding Notes;
(vi) in the case of Bearer Notes described in Section 163(f)(2)(A) of
the Internal Revenue Code, such Notes shall be described in section
163(f)(2)(B) of the Internal Revenue Code and such section shall apply to
such Notes;
(vii) on or prior to the date that the new issuance is to occur, the
Issuer will have delivered to the Indenture Trustee an Indenture Supplement
and, if applicable, the Issuer Certificate or on or before the date that
the new issuance is to occur, the Issuer will have executed with the
Indenture Trustee a Terms Document relating to the applicable Class or
Tranche of Notes;
(viii)in the case of Foreign Currency Notes, the Issuer will have
appointed one or more Paying Agents in the appropriate countries;
(ix) the conditions specified herein or in Section 311; and
(x) any other conditions specified in the applicable Indenture
Supplement;
provided, however, that any one of the aforementioned conditions may be
eliminated (other than clause (iv)) or modified as a condition precedent to any
new issuance of a Series, Class or Tranche of Notes if the Issuer has obtained
approval from each Note Rating Agency.
(b) The Issuer and the Indenture Trustee will not be required to
provide prior notice to or to obtain the consent of any Noteholder of any
Outstanding Series, Class or Tranche to issue any additional Notes of any
Series, Class or Tranche.
(c) There are no restrictions on the timing or amount of any
additional issuance of Notes of an Outstanding Class or Tranche of a Series of
Notes, so long as the conditions described in Subsection 310(a) are met or
waived. As of the date of any additional issuance of Notes of an Outstanding
Class or Tranche of Notes, the Stated Principal Amount, Outstanding Dollar
Principal Amount and Nominal Liquidation Amount of that Class or Tranche will be
increased to reflect the principal amount of the additional Notes. If the
additional Notes are a Class or Tranche of Notes that has the benefit of a
Derivative Agreement, the Issuer will enter into a Derivative Agreement for the
benefit of the additional Notes. In addition, if the additional Notes are a
Class or Tranche of Notes that has the benefit of any Supplemental Credit
Enhancement Agreement or any Supplemental Liquidity Agreement, the Issuer will
enter into a Supplemental Credit Enhancement Agreement or Supplemental Liquidity
Agreement, as applicable, for the benefit of the additional Notes. Furthermore,
the targeted deposits, if any, to
38
any applicable Issuer Account will be increased proportionately to reflect the
principal amount of the additional Notes.
When issued, the additional Notes of a Tranche will be identical in
all respects to the other Outstanding Notes of that Tranche and will be equally
and ratably entitled to the benefits of the Indenture, the related Asset Pool
Supplement and the related Indenture Supplement applicable to the previously
issued Notes of such Tranche, as the other Outstanding Notes of that Tranche
without preference, priority or distinction.
Section 311. Specification of Required Subordinated Amount and other
Terms with Respect to each Series, Class or Tranche of Notes.
(a) The applicable Indenture Supplement for each Series, Class or
Tranche of Notes will specify a Required Subordinated Amount of each
Subordinated Class or Tranche of Notes, if any.
(b) The Issuer may change the Required Subordinated Amount or method
of computing such amount for any Class or Tranche of Notes at any time, without
the consent of any Noteholders, so long as the Issuer has (i) received
confirmation from the Note Rating Agencies that have rated any Outstanding Notes
of the Series to which such Class or Tranche belongs that the change in the
Required Subordinated Amount will not result in a Ratings Effect with respect to
any Outstanding Notes of such Series and (ii) delivered to the Indenture Trustee
and the Note Rating Agencies an Issuer Tax Opinion.
[END OF ARTICLE III]
39
ARTICLE IV
ISSUER ACCOUNTS AND INVESTMENTS
Section 401. Collections. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance from any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture including,
without limitation, all funds and other property payable to the Indenture
Trustee in connection with the Collateral designated for inclusion in each Asset
Pool. The Indenture Trustee will hold all such money and property received by it
as part of the Collateral designated for inclusion in each Asset Pool and will
apply it as provided in this Indenture.
Section 402. Issuer Accounts.
(a) Issuer Accounts; Distributions from Issuer Accounts. On or
before the date of initial issuance of Notes secured by the Collateral
designated for inclusion in a specific Asset Pool, the Issuer will, pursuant to
the related Asset Pool Supplement, cause to be established and maintained for
such Asset Pool one or more Eligible Deposit Accounts (each such account as
described in the related Asset Pool Supplement) in the name of the Indenture
Trustee, bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Indenture Trustee and the applicable
Noteholders. From time to time in connection with the issuance of a Series,
Class or Tranche of Notes,the Issuer may cause the Indenture Trustee to
establish one or more Eligible Deposit Accounts denominated as "Supplemental
Issuer Accounts" in the name of the Indenture Trustee. Each Issuer Account shall
be under the control (within the meaning of Section 9-104 or 9-106, as
applicable, of the UCC) of the Indenture Trustee for the applicable Asset Pool
for the benefit of the Indenture Trustee and the applicable Noteholders whose
Notes are secured by the Collateral designated for inclusion in the applicable
Asset Pool. Supplemental Issuer Accounts shall be created as specified in the
applicable Asset Pool Supplement or Indenture Supplement. Any Supplemental
Issuer Accounts will receive deposits as specified in the applicable Asset Pool
Supplement or Indenture Supplement. If, at any time, the institution holding any
Issuer Account ceases to be an Eligible Institution, the Issuer shall within ten
(10) Business Days (or such longer period, not to exceed thirty (30) calendar
days, as to which each Note Rating Agency may consent in writing) establish a
new Issuer Account that is an Eligible Deposit Account and shall transfer any
cash and/or investments from the existing Issuer Account to such new Issuer
Account.
(b) All payments to be made from time to time by or on behalf of the
Indenture Trustee to Noteholders out of funds in the Issuer Accounts for a
particular Asset Pool pursuant to this Indenture will be made as provided in the
Asset Pool Supplement or the applicable Indenture Supplement but only to the
extent funds are available in the applicable Issuer Accounts.
Section 403. Investment of Funds in the Issuer Accounts.
(a) Funds on deposit in the Issuer Accounts will (unless otherwise
stated in the applicable Asset Pool Supplement or Indenture Supplement) be
invested and reinvested by
40
the Indenture Trustee at the written direction of the Issuer in one or more
Eligible Investments. Absent such written direction, the Indenture Trustee shall
invest funds in the Eligible Investments described in clause (f) of the
definition thereof. The Issuer may authorize the Indenture Trustee to make
specific investments pursuant to written instructions, in such amounts as the
Issuer will specify. Notwithstanding the foregoing, funds held by the Indenture
Trustee in any of the Issuer Accounts will be invested in Eligible Investments
that will mature in each case no later than the date on which such funds in the
Issuer Accounts are scheduled to be transferred or distributed by the Indenture
Trustee pursuant to this Indenture (or as necessary to provide for timely
payment of principal or interest on the applicable Principal Payment Date or
Interest Payment Date).
(b) All funds deposited from time to time in the Issuer Accounts
pursuant to this Indenture and all investments made with such funds will be held
by the Indenture Trustee in the Issuer Accounts as part of the Collateral
designated for inclusion in such Asset Pool as herein provided, subject to
withdrawal by the Indenture Trustee for the purposes set forth herein.
(c) Funds and other property in any of the Issuer Accounts will not
be commingled with any other funds or property of the Issuer or the Indenture
Trustee. The Indenture Trustee shall hold all Eligible Investments in a manner
specified in the related Asset Pool Supplement; provided, that, other than
following an Event of Default and acceleration pursuant to Section 602, no
Eligible Investment shall be disposed of prior to its maturity.
(d) All interest and earnings (net of losses and investment
expenses) on funds on deposit in the Issuer Account will be applied as specified
in the applicable Asset Pool Supplement or Indenture Supplement. Unless
otherwise stated in the related Asset Pool Supplement or Indenture Supplement,
for purposes of determining the availability of funds or the balance in the
Issuer Accounts for any reason under this Indenture or any Indenture Supplement,
investment earnings on such funds shall be deemed not to be available or on
deposit.
Subject to Subsection 701(d), the Indenture Trustee will not in any
way be held liable by reason of any insufficiency in such Issuer 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, in accordance with their terms.
(e) Funds on deposit in the Issuer Accounts will be invested and
reinvested by the Indenture Trustee to the fullest extent practicable, in such
manner as the Indenture Trustee will from time to time determine, but only in
one or more Eligible Investments, upon the occurrence of any of the following
events:
(i) the Issuer will have failed to give investment directions to
the Indenture Trustee; or
(ii) an Event of Default will have occurred and is continuing
but no Notes have been declared due and payable pursuant to Section 602.
[END OF ARTICLE IV]
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ARTICLE V
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES
HELD BY THE ISSUER OR THE BANK
Section 501. Satisfaction and Discharge of Indenture. This Indenture
will cease to be of further effect with respect to any Series, Class or Tranche
of Notes (except as to any surviving rights of transfer or exchange of Notes of
that Series, Class or Tranche expressly provided for herein or in the form of
Note for that Series, Class or Tranche), and the Indenture Trustee, on demand of
and at the expense of the Issuer, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to that Series, Class or
Tranche, when:
(a) all Notes of that Series, Class or Tranche theretofore
authenticated and delivered (other than (A) Notes of that Series, Class or
Tranche which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, and (B) Notes of that Series, Class or
Tranche for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the Issuer
or discharged from that trust, as provided in Section 1003) have been delivered
to the Indenture Trustee canceled or for cancellation;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder (including payments to the Indenture Trustee pursuant to Section 707)
by the Issuer with respect to the Notes of that Series, Class or Tranche; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
with respect to the Notes of that Series, Class or Tranche have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any Series, Class or Tranche of Notes, the obligations of the Issuer to the
Indenture Trustee with respect to that Series, Class or Tranche of Notes under
Section 707 and the obligations of the Indenture Trustee under Sections 502 and
1003 will survive such satisfaction and discharge.
Section 502. Application of Trust Money. All money and obligations
deposited with the Indenture Trustee pursuant to Sections 501 or 503 and all
money received by the Indenture Trustee in respect of such obligations will be
held in trust and applied by it, in accordance with the provisions of the
Series, Class or Tranche of Notes in respect of which it was deposited and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Indenture Trustee
may determine, to the Persons entitled thereto, of the principal and interest
for whose payment that money and obligations have been deposited with or
received by the Indenture Trustee.
Section 503. Cancellation of Notes Held by the Issuer or the
Transferor. If the Issuer, the Transferor or any of their Affiliates holds any
Notes, that Holder may, subject to any provisions of a related Indenture
Supplement limiting the repayment of such Notes, by notice
42
from that Holder to the Indenture Trustee cause the Notes to be repaid and
canceled, whereupon the Notes will no longer be Outstanding.
[END OF ARTICLE V]
43
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 601. Events of Default. "Event of Default," wherever used
herein, means with respect to any Series, Class or Tranche of Notes any one of
the following events (whatever the reason for such Event of Default and whether
it will be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
either expressly stated to be inapplicable to a particular Series, Class or
Tranche or specifically deleted or modified in the applicable Indenture
Supplement creating such Series, Class or Tranche of Notes or in the form of
Note for such Series, Class or Tranche:
(a) with respect to such Series, Class or Tranche of Notes, as
applicable, a default by the Issuer in the payment of any interest on such Notes
when such interest becomes due and payable, and continuance of such default for
a period of thirty-five (35) days following the date on which such interest
became due and payable;
(b) with respect to such Series, Class or Tranche of Notes, a default
by the Issuer in the payment of the Stated Principal Amount of such Tranche of
Notes at the applicable Legal Maturity Date;
(c) a default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture in respect of the Notes of such Series,
Class or Tranche (other than a covenant or warranty in respect of the Notes of
such Series, Class or Tranche a default in the performance of which or the
breach of which is elsewhere in this Section specifically dealt with), all of
such covenants and warranties in this Indenture which are not expressly stated
to be for the benefit of a particular Series, Class and Tranche of Notes being
deemed to be in respect of the Notes of all Series, Classes or Tranches for this
purpose, and continuance of such default or breach for a period of sixty (60)
days after there has been given, by registered or certified mail, to the Issuer
by the Indenture Trustee or to the Issuer and the Indenture Trustee by the
Holders of at least 25% of the aggregate in Outstanding Dollar Principal Amount
of the Outstanding Notes of the affected Series, Class or Tranche, a written
notice specifying such default or breach and requesting it to be remedied and
stating that such notice is a "Notice of Default" hereunder and, as a result of
such default, the interests of the Holders of the Notes of such Series, Class or
Tranche are materially and adversely affected and continue to be materially and
adversely affected during the sixty (60) day period;
(d) (i) the Issuer shall file a petition or commence a proceeding (A)
to take advantage of any bankruptcy, conservatorship, receivership, insolvency,
or similar laws or (B) for the appointment of a trustee, conservator, receiver,
liquidator, or similar official for or relating to the Issuer or all or
substantially all of its property, (ii) the Issuer shall consent or fail to
object to any such petition filed or proceeding commenced against or with
respect to it or all or substantially all of its property, or any such petition
or proceeding shall not have been dismissed or stayed within sixty (60) days of
its filing or commencement, or a court, agency, or other supervisory authority
with jurisdiction shall have decreed or ordered relief with respect to
44
any such petition or proceeding, (iii) the Issuer shall admit in writing its
inability to pay its debts generally as they become due, (iv) the Issuer shall
make an assignment for the benefit of its creditors, or (v) the Issuer shall
voluntarily suspend payment of its obligations.
(e) with respect to any such Series, Class or Tranche, any additional
Event of Default specified in the Indenture Supplement for such Series, Class or
Tranche of Notes as applying to such Series, Class or Tranche, or specified in
the form of Note for such Series, Class or Tranche.
Section 602. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default described in clause (a), (b), (c) or (e)
(if the Event of Default under clause (c) or (e) is with respect to less than
all Series, Classes and Tranches of Notes then Outstanding) of Section 601
occurs and is continuing with respect to any Series, Class or Tranche, then and
in each and every such case, unless the principal of all the Notes of such
Series, Class or Tranche shall have already become due and payable, either the
Indenture Trustee or the Majority Holders of the Notes of such Series, Class or
Tranche then Outstanding hereunder (each such Series, Class or Tranche acting as
a separate Class), by notice in writing to the Issuer (and to the Indenture
Trustee if given by the Holders), may declare the Outstanding Dollar Principal
Amount of all the Outstanding Notes of such Series, Class or Tranche then
Outstanding and all interest accrued or principal accreted and unpaid (if any)
thereon to be due and payable immediately, and upon any such declaration the
same will become and will be immediately due and payable, anything in this
Indenture, the related Asset Pool Supplement, the related Indenture Supplement
or in the Notes of such Series, Class or Tranche to the contrary
notwithstanding. Such payments are subject to the allocation provisions of the
applicable Asset Pool Supplement and the allocation, deposits and payment
sections of the related Indenture Supplement.
(b) If an Event of Default described in clause (c) or (e) of Section
601 occurs with respect to all Series, Classes and Tranches of Outstanding Notes
and is continuing, then and in each and every such case, unless the principal of
all the Notes shall have already become due and payable, either the Indenture
Trustee or the Majority Holders of all the Outstanding Notes hereunder (treated
as one Class), by notice in writing to the Issuer (and to the Indenture Trustee
if given by Holders), may declare the Outstanding Dollar Principal Amount of all
the Notes then Outstanding and all interest accrued or principal accreted and
unpaid (if any) thereon to be due and payable immediately, and upon any such
declaration the same will become and will be immediately due and payable,
notwithstanding anything in this Indenture, the related Asset Pool Supplement,
the related Indenture Supplements or the Notes to the contrary.
(c) If an Event of Default described in clause (d) of Section 601
occurs and is continuing, then the Notes of all Series, Classes and Tranches
will automatically be and become immediately due and payable by the Issuer,
without notice or demand to any Person, and the Issuer will automatically and
immediately be obligated to pay off the Notes.
At any time after such a declaration of acceleration has been made or an
automatic acceleration has occurred with respect to the Notes of any Series,
Class or Tranche and before a judgment or decree for payment of the money due
has been obtained by the Indenture Trustee as hereinafter
45
in this Article VI provided, the Majority Holders of such Series, Classes or
Tranche, by written notice to the Issuer and the Indenture Trustee, may rescind
and annul such declaration and its consequences if:
(x) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay (i) all overdue installments of interest on the Notes of
such Series, Class or Tranche, (ii) the principal of any Notes of such
Series, Class or Tranche which have become due otherwise than by such
declaration of acceleration, and interest thereon at the rate or rates
prescribed therefor by the terms of the Notes of such Series, Class or
Tranche, to the extent that payment of such interest is lawful, (iii)
interest upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Notes of such Series, Class or
Tranche to the extent that payment of such interest is lawful, and (iv) all
sums paid by the Indenture Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Indenture Trustee, its
agents and counsel and all other amounts due to the Indenture Trustee under
Section 707; and
(y) all Events of Default with respect to such Series, Class or
Tranche of Notes, other than the nonpayment of the principal of the Notes
of such Series, Class or Tranche which has become due solely by such
acceleration, have been cured or waived as provided in Section 616.
No such rescission will affect any subsequent default or impair any
right consequent thereon.
Section 603. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any Series,
Class or Tranche of Notes when such interest becomes due and payable and such
default continues for a period of thirty-five (35) days following the date on
which such interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of any Series,
Class or Tranche of Notes on the Legal Maturity Date thereof;
the Issuer will, upon demand of the Indenture Trustee, pay (subject to the
allocation provided in this Article VI and any related Indenture Supplement) to
the Indenture Trustee, for the benefit of the Holders of any such Notes of the
affected Series, Class or Tranche, the whole amount then due and payable on any
such Notes for principal and interest, with interest, to the extent that payment
of such interest will be legally enforceable, upon the overdue principal and
upon overdue installments of interest, (i) in the case of Interest-bearing
Notes, at the rate of interest applicable to the Stated Principal Amount
thereof, unless otherwise specified in the applicable Indenture Supplement; and
(ii) in the case of Discount Notes, as specified in the applicable Indenture
Supplement, and in addition thereto, will pay such further amount as will be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel and all other amounts due to the Indenture
Trustee under Section 707.
46
If the Issuer fails to pay such amounts forthwith upon such demand,
the Indenture Trustee may, in its own name and as trustee of an express trust,
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may directly prosecute such proceeding to judgment or final decree,
and the Indenture Trustee may enforce the same against the Issuer or any other
obligor upon the Notes of such Series, Class or Tranche and collect the money
adjudged or decreed to be payable in the manner provided by law out of the
Collateral or any other obligor upon such Notes, wherever situated.
Section 604. Indenture Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy or other
similar proceeding relative to the Issuer or any other obligor upon the Notes or
the property of the Issuer or of such other obligor, the Indenture Trustee
(irrespective of whether the principal of the Notes will then be due and payable
as therein expressed or by declaration or otherwise) will be entitled and
empowered by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Notes and to file such
other papers or documents as may be necessary and advisable in order to
have the claims of the Indenture Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel and all other amounts due the
Indenture Trustee under Section 707) and of the Noteholders allowed in such
judicial proceeding, and
(ii) to collect and receive any funds or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or other similar official in any
such proceeding is hereby authorized by each Noteholder to make such payment to
the Indenture Trustee, and in the event that the Indenture Trustee will consent
to the making of such payments directly to the Noteholders, to pay to the
Indenture Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel, and any other amounts due the Indenture Trustee under Section 707.
Nothing herein contained will be deemed to authorize the Indenture
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Indenture Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
Section 605. Indenture Trustee May Enforce Claims Without Possession
of Notes. All rights of action and claims under this Indenture or the Notes of
any Series, Class or Tranche may be prosecuted and enforced by the Indenture
Trustee, without the possession of any of the Notes of such Series, Class or
Tranche or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Indenture Trustee, will be brought in its own
name as trustee of an express trust, and any recovery of judgment will, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture
47
Trustee and its respective agents and counsel, be for the ratable benefit of the
Holders of the Notes of the Series, Class or Tranche in respect of which such
judgment has been recovered.
Section 606. Application of Money Collected. Any money or other
property collected by the Indenture Trustee, with respect to a Series, Class or
Tranche of Notes pursuant to this Article VI will be applied in the following
order, at the date or dates fixed by the Indenture Trustee and, in case of the
distribution of such money on account of principal or interest, upon
presentation of the Notes of such Series, Class or Tranche and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
(a) first, to the payment of all amounts due the Indenture Trustee
under Section 707(a);
(b) second, to the payment of the amounts then due and unpaid upon
the Notes of that Series, Class or Tranche for principal and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind (but subject to the
allocation provided in the relevant allocation provisions of the related Asset
Pool Supplement and the related Indenture Supplement), according to the amounts
due and payable on such Notes for principal and interest, respectively;
(c) third, to pay any servicing fee and any other fees or expenses
then owing for that Series, Class or Tranche of Notes; and
(d) fourth, to the Issuer.
Section 607. Indenture Trustee May Elect to Hold the Collateral
Certificate. Following an acceleration of any Series, Class or Tranche of Notes,
the Indenture Trustee may elect to continue to hold a Collateral Certificate and
apply distributions on a Collateral Certificate in accordance with the regular
distribution provisions pursuant to the relevant allocation provisions of the
related Asset Pool Supplement, except that principal will be paid on the
accelerated Series, Class or Tranche of Notes to the extent funds are received
and allocated to the accelerated Series, Class or Tranche, and payment is
permitted by the subordination provisions of the accelerated Series, Class or
Tranche.
Section 608. Sale of Collateral for Accelerated Notes. In the case of
a Series, Class or Tranche of Notes that has been accelerated following an Event
of Default, the Indenture Trustee may, and at the direction of the Majority
Holders of that Series, Class or Tranche of Notes will, cause the Issuer to sell
Collateral as provided in the related Indenture Supplement.
Section 609. Noteholders Have the Right to Direct the Time, Method
and Place of Conducting Any Proceeding for Any Remedy Available to the Indenture
Trustee. The Majority Holders of any accelerated Series, Class or Tranche of
Notes have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or exercising any
trust or power conferred on the Indenture Trustee. This right may be exercised
only if the direction provided by the Noteholders does not conflict with
applicable law or this Indenture and does not have a substantial likelihood of
involving the Indenture Trustee in personal liability.
48
Section 610. Limitation on Suits. No Holder of any Note of any
Series, Class or Tranche will have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee or similar official, 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 with respect to Notes of such Series,
Class or Tranche;
(b) the Holders of more than 25% in Outstanding Dollar Principal
Amount of the Outstanding Notes of such Series, Class or Tranche have made
written request to the Indenture Trustee to institute proceedings in respect of
such Event of Default in the name of 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 compliance with such request; and
(d) the Indenture Trustee, for sixty (60) days after the Indenture
Trustee has received such notice, request and offer of indemnity, has failed to
institute any such proceeding;
it being understood and intended that no one or more Holders of Notes of such
Series, Class or Tranche will have any right in any manner whatsoever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Notes of such Series, Class or
Tranche, or to obtain or to seek to obtain priority or preference over any other
such Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and proportionate benefit of all the Holders
of all Notes of such Series, Class or Tranche.
Section 611. Unconditional Right of Noteholders to Receive Principal
and Interest; Limited Recourse. Notwithstanding any other provisions in this
Indenture, the Holder of any Note will have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
on the Legal Maturity Date expressed in the related Indenture Supplement and to
institute suit for the enforcement of any such payment, and such right will not
be impaired without the consent of such Holder; provided, however, that
notwithstanding any other provision of this Indenture to the contrary, the
obligation to pay principal of or interest on the Notes or any other amount
payable to any Noteholder will be without recourse to any Transferor, the
Indenture Trustee, the Owner Trustee or any Affiliate, officer, employee or
director of any of them, and the obligation of the Issuer to pay principal of or
interest on the Notes or any other amount payable to any Noteholder will be
subject to the allocation and payment provisions of the applicable Asset Pool
Supplement and the applicable Indenture Supplement and limited to amounts
available from the Collateral pledged to secure the Notes of the applicable
Asset Pool.
Section 612. 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, then and in every such case the Issuer, the Indenture
Trustee and the Noteholders will, subject to any determination in
49
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 will continue as though no such proceeding had been
instituted.
Section 613. 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 will, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, will not prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 614. Delay or Omission Not Waiver. No delay or omission of
the Indenture Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default will impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the 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 615. Control by Noteholders. The Majority Holders of any
affected Series, Class or Tranche will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred on the Indenture Trustee
with respect to the Notes of such Series, Class or Tranche, provided that:
(a) the Indenture Trustee will have the right to decline to follow
any such direction if the Indenture Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or would
conflict with this Indenture or if the Indenture Trustee in good faith
determines that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(b) the Indenture Trustee may take any other action permitted
hereunder deemed proper by the Indenture Trustee which is not inconsistent with
such direction.
Section 616. Waiver of Past Defaults. Holders of more than 66"% of
the Outstanding Dollar Principal Amount of any Series, Class or Tranche may on
behalf of the Holders of all the Notes of such Series, Class or Tranche waive
any past default hereunder or under the related Asset Pool Supplement or
Indenture Supplement with respect to such Series, Class or Tranche and its
consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any Note of
such Series, Class or Tranche, or
(b) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such Series, Class or Tranche.
50
Upon any such waiver, such default will cease to exist, and any Event
of Default arising therefrom will be deemed to have been cured, for every
purpose of this Indenture; but no such waiver will extend to any subsequent or
other default or impair any right consequent thereon.
Section 617. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof will be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken or omitted by it as Indenture
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section will not apply to any suit instituted by the Indenture Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 25% in Outstanding Dollar Principal Amount of the
Outstanding Notes of any Series, Class or Tranche to which the suit relates, or
to any suit instituted by any Noteholders for the enforcement of the payment of
the principal of or interest on any Note on or after the applicable Legal
Maturity Date expressed in such Note.
Section 618. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
[END OF ARTICLE VI]
51
ARTICLE VII
THE INDENTURE TRUSTEE
Section 701. Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with respect to the
Notes of any Series, Class or Tranche, and no implied covenants or obligations
will be read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture Trustee
may, with respect to Notes of any Series, Class or Tranche, conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Indenture Trustee, the Indenture Trustee will be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture but need not confirm or investigate the accuracy
of any mathematical calculations or other facts stated therein.
(c) In case an Event of Default with respect to any Series, Class or
Tranche of Notes has occurred and is continuing, the Indenture Trustee will
exercise with respect to the Notes of such Series, Class or Tranche such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this subsection (d) will not be construed to limit the
effect of subsection (a) of this Section;
(ii) the Indenture Trustee will not be liable for any error of
judgment made in good faith by an Indenture Trustee Authorized Officer,
unless it will be proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Majority Holders of any Series, Class or Tranche
relating to the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any trust or power
conferred upon the Indenture Trustee, under this Indenture with respect to
the Notes of such Series, Class or Tranche; and
(iv) no provision of this Indenture will require the Indenture
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance
52
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it will have reasonable grounds for believing that repayment of
such funds or indemnity satisfactory to the Indenture Trustee against such
risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee will be subject to the provisions
of this Section.
Section 702. Notice of Defaults. Within ninety (90) days after the
occurrence of any default hereunder with respect to Notes of any Series, Class
or Tranche,
(a) the Indenture Trustee will transmit by mail to all Registered
Noteholders of such Series, Class or Tranche, as their names and addresses
appear in the Note Register, notice of such default hereunder known to the
Indenture Trustee,
(b) the Indenture Trustee will notify all Holders of Bearer Notes of
such Series, Class or Tranche, by publication of notice of such default in an
Authorized Newspaper, or as otherwise provided in the applicable Indenture
Supplement, and
(c) the Indenture Trustee will give prompt written notification
thereof to the Note Rating Agencies, unless such default will have been cured or
waived;
provided, however, that, except in the case of a default in the payment of the
principal of or interest on any Note of such Series, Class or Tranche, the
Indenture Trustee will be protected in withholding such notice if and so long as
an Indenture Trustee Authorized Officer in good faith determines that the
withholding of such notice is in the interests of the Noteholders of such
Series, Class or Tranche. For the purpose of this Section, the term "default,"
with respect to Notes of any Series, Class or Tranche, means any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to Notes of such Series, Class or Tranche.
Section 703. Certain Rights of Indenture Trustee. Except as otherwise
provided in Section 701:
(a) the Indenture Trustee may conclusively rely and will be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the Indenture
Trustee will deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Indenture Trustee
(unless other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(c) the Indenture Trustee may consult with counsel of its own
selection and the advice of such counsel or any Opinion of Counsel will be full
and complete authorization and
53
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(d) the Indenture Trustee will be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(e) the Indenture Trustee will not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee will determine to make
such further inquiry or investigation, it will be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney;
(f) the Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Indenture Trustee will not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(g) the Indenture Trustee will not be responsible for filing any
financing statements or continuation statements in connection with the Notes,
but will cooperate with the Issuer in connection with the filing of such
financing statements or continuation statements;
(h) the Indenture Trustee shall not be deemed to have notice of any
default or Event of Default unless an Indenture Trustee Authorized Officer 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 this
Indenture; and
(i) the rights, privileges, protections, immunities and benefits
given to 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 each agent, custodian and other person
employed to act hereunder.
Section 704. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the certificates of
authentication, will be taken as the statements of the Issuer, and the Indenture
Trustee assumes no responsibility for their correctness. The Indenture Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Indenture Trustee will not be accountable for the use or
application by the Issuer of Notes or the proceeds thereof.
Section 705. May Hold Notes. The Indenture Trustee, any Paying Agent,
the Note Registrar or any other agent of the Issuer, in its individual or any
other capacity, may become the owner or pledgee of Notes and, subject to
Sections 708 and 713, may otherwise deal
54
with the Issuer with the same rights it would have if it were not Indenture
Trustee, Paying Agent, Note Registrar or such other agent.
Section 706. Money Held in Trust. The Indenture Trustee will be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Issuer.
Section 707. Compensation and Reimbursement, Limit on Compensation,
Reimbursement and Indemnity.
(a) The Issuer agrees:
(i) to pay to the Indenture Trustee from time to time
reasonable compensation (or, for so long as The Bank of New York is the
Indenture Trustee, such amount as has been mutually agreed upon in writing)
for all services rendered by it hereunder (which compensation will not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(ii) except as otherwise expressly provided herein, to reimburse
the Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Indenture Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to hold it
harmless against, any and all loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability (whether
asserted by the Issuer, the Administrator, any Holder or any other Person)
in connection with the exercise or performance of any of its powers or
duties hereunder.
The Indenture Trustee will have no recourse to any asset of the
Issuer other than funds available pursuant to Section 606 or to any Person other
than the Administrator or the Issuer. Except as specified in Section 606, any
such payment to the Indenture Trustee shall be subordinate to payments to be
made to Noteholders.
(b) This Section will survive the termination of this Indenture and
the resignation or replacement of the Indenture Trustee under Section 710.
Section 708. Disqualification; Conflicting Interests. If the
Indenture Trustee has or will acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Indenture Trustee will, if so required by the
Trust Indenture Act, either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. Nothing herein will prevent the Indenture Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
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Section 709. Corporate Indenture Trustee Required; Eligibility. There
will at all times be an Indenture Trustee hereunder with respect to each Series,
Class or Tranche of Notes, which will be either a bank or a corporation
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority, and having a rating of
at least BBB- by Standard & Poor's and Baa3 by Moody's. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
will be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Issuer may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Issuer, serve as Indenture Trustee. If at any time the Indenture Trustee
with respect to any Series, Class or Tranche of Notes will cease to be eligible
in accordance with the provisions of this Section, it will resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 710. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article will
become effective until the acceptance of appointment by the successor Indenture
Trustee under Section 711.
(b) The Indenture Trustee may resign with respect to any Series,
Class or Tranche of Notes at any time by giving written notice thereof to the
Issuer. If an instrument of acceptance by a successor Indenture Trustee shall
not have been delivered to the Indenture Trustee within thirty (30) days after
the giving of such notice of resignation, the resigning Indenture Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Indenture Trustee.
(c) The Indenture Trustee may be removed with respect to any Series,
Class or Tranche of Notes at any time by Action of the Majority Holders of that
Series, Class or Tranche, delivered to the Indenture Trustee and to the Issuer.
If an instrument of acceptance by a successor Indenture Trustee shall not have
been delivered to the Indenture Trustee within 30 days after the giving of such
notice of removal, the Indenture Trustee being removed may petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee.
(d) If at any time:
(i) the Indenture Trustee fails to comply with Section 310(b)
of the Trust Indenture Act with respect to any Series, Class or Tranche of
Notes after written request therefor by the Issuer or by any Noteholder who
has been a bona fide Holder of a Note of that Series, Class or Tranche for
at least six (6) months, or
(ii) the Indenture Trustee ceases to be eligible under Section
709 with respect to any Series, Class or Tranche of Notes and fails to
resign after written request therefor by the Issuer or by any such
Noteholder, or
56
(iii) the Indenture Trustee becomes incapable of acting with
respect to any Series, Class or Tranche of Notes, or
(iv) the Indenture Trustee is adjudged bankrupt or insolvent or a
receiver of the Indenture Trustee or of its property is appointed or any
public officer takes charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, with
respect to the Series, Class or Tranche, or in the case of clause (iv), with
respect to all Series, Classes or Tranches, or (B) subject to Section 617, any
Noteholder who has been a bona fide Holder of a Note of such Series, Class and
Tranche for at least six (6) months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Indenture Trustee with respect to such Series, Class or Tranche and the
appointment of a successor Indenture Trustee with respect to the Series, Class
or Tranche, or, in the case of clause (iv), with respect to all Series, Classes
and Tranches.
(e) If the Indenture Trustee resigns, is removed or becomes incapable
of acting with respect to any Series, Class or Tranche of Notes, or if a vacancy
shall occur in the office of the Indenture Trustee with respect to any Series,
Class or Tranche of Notes for any cause, the Issuer will promptly appoint a
successor Indenture Trustee for that Series, Class or Tranche of Notes. If,
within one year after such resignation, removal or incapacity, or the occurrence
of such vacancy, a successor Indenture Trustee with respect to such Series,
Class or Tranche of Notes is appointed by Act of the Majority Holders of such
Series, Class or Tranche delivered to the Issuer and the retiring Indenture
Trustee, the successor Indenture Trustee so appointed will, forthwith upon its
acceptance of such appointment, become the successor Indenture Trustee with
respect to such Series, Class or Tranche and supersede the successor Indenture
Trustee appointed by the Issuer with respect to such Series, Class or Tranche of
Notes. If no successor Indenture Trustee with respect to such Series, Class or
Tranche of Notes shall have been so appointed by the Issuer or the Noteholders
of such Series, Class or Tranche and accepted appointment in the manner
hereinafter provided, any Noteholder who has been a bona fide Holder of a Note
of that Series, Class or Tranche for at least six (6) months may, on behalf of
itself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee with respect
to such Series, Class or Tranche of Notes.
(f) The Issuer will give written notice of each resignation and each
removal of the Indenture Trustee with respect to any Series, Class or Tranche of
Notes and each appointment of a successor Indenture Trustee with respect to any
Series, Class or Tranche to each Noteholder as provided in Section 106 and to
each Note Rating Agency. To facilitate delivery of such notice, upon request by
the Issuer, the Note Registrar shall provide to the Issuer a list of the
relevant Registered Noteholders. Each notice will include the name of the
successor Indenture Trustee and the address of its principal Corporate Trust
Office.
Section 711. Acceptance of Appointment by Successor. Every successor
Indenture Trustee appointed hereunder will execute, acknowledge and deliver to
the Issuer and to the predecessor Indenture Trustee an instrument accepting such
appointment, with a copy to the
57
Note Rating Agencies, and thereupon the resignation or removal of the
predecessor Indenture Trustee will become effective with respect to any Series,
Class or Tranche as to which it is resigning or being removed as Indenture
Trustee, and such successor Indenture Trustee, without any further act, deed or
conveyance, will become vested with all the rights, powers, trusts and duties of
the predecessor Indenture Trustee with respect to any such Series, Class or
Tranche; but, on request of the Issuer or the successor Indenture Trustee, such
predecessor Indenture Trustee will, upon payment of its reasonable charges, if
any, execute and deliver an instrument transferring to such successor Indenture
Trustee all the rights, powers and trusts of the predecessor Indenture Trustee,
and will duly assign, transfer and deliver to such successor Indenture Trustee
all property and money held by such predecessor Indenture Trustee hereunder with
respect to all or any such Series, Class or Tranche, subject nevertheless to its
lien, if any, provided for in Section 707. Upon request of any such successor
Indenture Trustee, the Issuer will execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Indenture
Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Indenture Trustee
with respect to the Notes of one or more (but not all) Series, Classes or
Tranches, the Issuer, the predecessor Indenture Trustee and each successor
Indenture Trustee with respect to the Notes of any applicable Series, Class or
Tranche will execute and deliver an Indenture Supplement which will contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Indenture Trustee with
respect to the Notes of any Series, Class or Tranche as to which the predecessor
Indenture Trustee is not being succeeded will continue to be vested in the
predecessor Indenture Trustee, and will add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such Indenture Supplement will
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee will be Indenture Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Indenture Trustee.
No successor Indenture Trustee with respect to any Series, Class or
Tranche of Notes will accept its appointment unless at the time of such
acceptance such successor Indenture Trustee will be qualified and eligible under
this Article.
Section 712. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Indenture Trustee, will be the successor of
the Indenture Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. The
Indenture Trustee will give prompt written notice of such merger, conversion,
consolidation or succession to the Issuer and the Note Rating Agencies. In case
any Notes shall have been authenticated, but not delivered, by the Indenture
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Indenture Trustee may adopt such authentication and deliver
the Notes so authenticated with the same effect as if such successor Indenture
Trustee had itself authenticated such Notes.
58
Section 713. Preferential Collection of Claims Against Issuer. If and
when the Indenture Trustee shall be or become a creditor of the Issuer (or any
other obligor upon the Notes), the Indenture Trustee will be subject to the
provisions of Section 311 of the Trust Indenture Act. An Indenture Trustee who
has resigned or been removed will be subject to Section 311(a) of the Trust
Indenture Act to the extent provided therein.
Section 714. Appointment of Authenticating Agent. At any time when
any of the Notes remain Outstanding the Indenture Trustee, with the approval of
the Issuer, may appoint an Authenticating Agent or Agents with respect to one or
more Series, Classes or Tranches of Notes which will be authorized to act on
behalf of the Indenture Trustee to authenticate Notes of such Series, Classes or
Tranches issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Notes so authenticated will be entitled
to the benefits of this Indenture and will be valid and obligatory for all
purposes as if authenticated by the Indenture Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of Notes
by the Indenture Trustee or the Indenture Trustee's Certificate of
Authentication, such reference will be deemed to include authentication and
delivery on behalf of the Indenture Trustee by an Authenticating Agent and a
Certificate of Authentication executed on behalf of the Indenture Trustee by an
Authenticating Agent. Each Authenticating Agent will be acceptable to the Issuer
and will at all times be a corporation organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as an Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and, if other than the
Issuer itself, subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent will be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent will cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent will
resign immediately in the manner and with the effect specified in this Section.
The initial Authenticating Agent for the Notes of all Series, Classes and
Tranches will be The Bank of New York.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent will be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, will
continue to be an Authenticating Agent, provided such corporation will be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Indenture Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Indenture Trustee and to the Issuer. The Indenture Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Issuer. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent will cease to be eligible in accordance with
the provisions of this Section, the Indenture Trustee, with the approval of the
Issuer, may appoint a successor Authenticating Agent which will be acceptable to
the Issuer and will give notice to
59
each Noteholder as provided in Section 106. Any successor Authenticating Agent
upon acceptance of its appointment hereunder will become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
will be appointed unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent
(other than an Authenticating Agent appointed at the request of the Issuer from
time to time) reasonable compensation for its services under this Section, and
the Indenture Trustee will be entitled to be reimbursed for such payments,
subject to the provisions of Section 707.
If an appointment with respect to one or more Series, Classes or
Tranches is made pursuant to this Section, the Notes of such Series, Classes or
Tranche may have endorsed thereon, in addition to the Indenture Trustee's
Certificate of Authentication, an alternate Certificate of Authentication in the
following form:
This is one of the Notes of the Series, Classes or Tranches
designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as
Indenture Trustee
By:
_______________________________
As Authenticating Agent
By:
_______________________________
Authorized Signatory
Section 715. Tax Returns. In the event that the Issuer shall be
required to file tax returns, the Administrator shall prepare or shall cause to
be prepared such tax returns and shall provide such tax returns to the Owner
Trustee or the Beneficiary for signature at least five (5) days before such tax
returns are due to be filed. The Issuer, in accordance with the terms of each
Indenture Supplement, shall also prepare or shall cause to be prepared all tax
information required by law to be distributed to Noteholders and shall deliver
such information to the Indenture Trustee at least five (5) days prior to the
date it is required by law to be distributed to Noteholders. The Indenture
Trustee, upon written request, will furnish the Administrator, the Issuer, and
the Beneficiary with all such information known to the Indenture Trustee as may
be reasonably requested and required in connection with the preparation of all
tax returns of the Issuer, and shall, upon request, execute such returns. In no
event shall the Indenture Trustee or the Owner Trustee be personally liable for
any liabilities, costs or expenses of the Issuer or any Noteholder arising under
any tax law, including without limitation, federal, state or local income or
excise taxes or any other tax imposed on or measured by income (or any interest
or penalty with respect thereto arising from a failure to comply therewith).
60
Section 716. Representations and Covenants of the Indenture Trustee.
The Indenture Trustee represents, warrants and covenants that:
(i) The Indenture Trustee is a banking corporation duly
organized and validly existing under the laws of the State of New York;
(ii) The Indenture Trustee has full power and authority to
deliver and perform this Indenture and has taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture
and other documents to which it is a party; and
(iii) Each of this Indenture and the other documents to which
it is a party has been duly executed and delivered by the Indenture Trustee
and constitutes its legal, valid and binding obligation in accordance with
its terms.
Section 717. Indenture Trustee's Application for Instructions from
the Issuer. Any application by the Indenture Trustee for written instructions
from the Issuer may, at the option of the Indenture Trustee, set forth in
writing any action proposed to be taken or omitted by the Indenture Trustee
under and in accordance with this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective, provided that
such application shall make specific reference to this Section 717. The
Indenture Trustee shall not be liable for any action taken by, or omission of,
the Indenture Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall not be less
than five (5) Business Days after the date the Issuer actually receives such
application, unless the Issuer shall have consented in writing to any earlier
date) unless prior to taking any such action (or the effective date in the case
of an omission), the Indenture Trustee shall have received written instructions
in response to such application specifying the action be taken or omitted.
Section 718. Appointment of Co-Trustee or Separate Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Indenture Trustee shall have
the power and shall execute and deliver all instruments to appoint one or more
Persons reasonably acceptable to the Issuer to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, such title to the Trust Estate, or any part
thereof, and, subject to the other provisions of this Section 718, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
709 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 710.
(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:
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(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 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; 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 VII. 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.
(d) Any separate trustee or co-trustee may at any time appoint 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.
[END OF ARTICLE VII]
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ARTICLE VIII
NOTEHOLDERS' MEETINGS, LISTS,
REPORTS BY INDENTURE TRUSTEE,
ISSUER AND BENEFICIARY
Section 801. Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer will furnish or cause to be furnished to the
Indenture Trustee:
(a) not more than fifteen (15) days after each Record Date, in each
year in such form as the Indenture Trustee may reasonably require, a list of the
names and addresses of the Registered Noteholders of such Series, Classes or
Tranches as of such date, and
(b) at such other times as the Indenture Trustee may request in
writing, within thirty (30) days after the receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than fifteen
(15) days before the time such list is furnished;
provided, however, that so long as the Indenture Trustee is the Note Registrar,
no such list shall be required to be furnished.
Section 802. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Registered Noteholders
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 801 and the names and addresses of Registered Noteholders received by
the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee
may destroy any list furnished to it as provided in Section 801 upon receipt of
a new list so furnished.
(b) If three (3) or more Holders of Notes of any Series, Class or
Tranche (hereinafter referred to as "applicants") (or, if there are less than
three (3) such Holders, all of the Holders) apply in writing to the Indenture
Trustee, and furnish to the Indenture Trustee reasonable proof that each such
applicant has owned a Note of such Series, Class or Tranche for a period of at
least six (6) months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Notes of such Series, Class or Tranche or with the Holders of all Notes with
respect to their rights under this Indenture or under such Notes and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Indenture Trustee will, within five (5)
Business Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved
at the time by the Indenture Trustee in accordance with Subsection 802(a),
or
(ii) inform such applicants as to the approximate number of
Holders of Notes of such Series, Class or Tranche or all Notes, as the case
may be, whose names and addresses appear in the information preserved at
the time by the Indenture Trustee in accordance with Subsection 802(a), and
as to the approximate cost of mailing to such
63
Noteholders the form of proxy or other communication, if any, specified in
such application.
If the Indenture Trustee shall elect not to afford such applicants
access to such information, the Indenture Trustee shall, upon the written
request of such applicants, mail to each Holder of a Registered Note of such
Series, Class or Tranche or to all Registered Noteholders, as the case may be,
whose names and addresses appear in the information preserved at the time by the
Indenture Trustee in accordance with Subsection 802(a), a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Indenture Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless, within five (5) days after such tender, the Indenture Trustee
shall mail to such applicants and file with the Commission, together with a copy
of the material to be mailed, a written statement to the effect that, in the
opinion of the Indenture Trustee, such mailing would be contrary to the best
interests of the Holders of Notes of such Series, Class or Tranche or all
Noteholders, as the case may be, or would be in violation of applicable law.
Such written statement will specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Indenture Trustee will mail copies of such material to all
Registered Noteholders of such Series, Class or Tranche or all Registered
Noteholders, as the case may be, with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Indenture Trustee will
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Notes, by receiving and holding the same, agrees
with the Issuer and the Indenture Trustee that neither the Issuer nor the
Indenture Trustee will be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders of Notes in
accordance with Subsection 802(b), regardless of the source from which such
information was derived, and that the Indenture Trustee will not be held
accountable by reason of mailing any material pursuant to a request made under
Subsection 802(b).
Section 803. Reports by Indenture Trustee.
(a) The term "reporting date" as used in this Section means May 31.
Within sixty (60) days after the reporting date in each year, beginning in 2003,
the Indenture Trustee will transmit to Noteholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such reporting date if required by Section 313(a) of the Trust
Indenture Act.
(b) To the extent required by the Trust Indenture Act, the Indenture
Trustee will mail each year to all Registered Noteholders, with a copy to the
Note Rating Agencies a report concerning:
(i) its eligibility and qualifications to continue as trustee
under this Indenture;
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(ii) any amounts advanced by the Indenture Trustee under this
Indenture;
(iii) the amount, interest rate and maturity date or indebtedness
owing by the Issuer to the Indenture Trustee, in its individual capacity;
(iv) the property and funds physically held by the Indenture
Trustee by which the related Notes are secured;
(v) any release or release and substitution of Collateral
subject to the lien of the related Asset Pool Supplement which has not
previously been reported; and
(vi) any action taken by the Indenture Trustee that materially
affects the Notes and that has not previously been reported.
(c) The Indenture Trustee will comply with Subsections 313(b) and
313(c) of the Trust Indenture Act.
(d) A copy of each such report will, at the time of such transmission
to Noteholders, be filed by the Indenture Trustee with each stock exchange upon
which the Notes are listed, and also with the Commission. The Issuer will notify
the Indenture Trustee when the Notes are admitted to trading on any stock
exchange.
Section 804. Meetings of Noteholders; Amendments and Waivers.
(a) If Notes of a Series, Class or Tranche are issuable in whole or
in part as Bearer Notes, a meeting of Noteholders of the Notes of such Series,
Class or Tranche may be called at any time and from time to time pursuant to
this Section to make, give or take any Action provided by this Indenture or any
Indenture Supplement to be made, given or taken by Noteholders of such Series,
Class or Tranche.
(b) The Indenture Trustee may call a meeting of the Noteholders of a
Series, Class or Tranche issuable in whole or in part as Bearer Notes at any
time for any purpose specified hereunder or under any Indenture Supplement. The
Indenture Trustee will call a meeting upon request of the Issuer or the Holders
of at least 10% in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of such Series, Class or Tranche issuable in whole or in part
as Bearer Notes. In any case, a meeting will be called after notice is given to
such Noteholders pursuant to Section 106.
(c) To be entitled to vote at any meeting of Noteholders of any
Series, Class or Tranche, a Person shall be (1) a Holder of one or more
Outstanding Notes of such Series, Class or Tranche, or (2) a Person appointed by
an instrument in writing as proxy for the Noteholder or Noteholders of one or
more Outstanding Notes of such Series, Class or Tranche by the Noteholder or
Noteholders. The only Person who shall be entitled to be present or to speak at
any meeting of Noteholders of any Series, Class or Tranche shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Indenture Trustee and its counsel and any representatives of the Issuer and its
counsel.
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(d) Except for any consent that must be given by the Holders of each
Outstanding Note affected or any action to be taken by the Issuer as holder of
any Collateral Certificate, any resolution presented at any meeting at which a
quorum is present may be adopted by the affirmative vote of the Majority Holders
of that Series, Class or Tranche, as the case may be. However, any resolution
with respect to any Action which may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount of
Outstanding Notes of a Series, Class or Tranche of Bearer Notes may be adopted
at any meeting at which a quorum is present only by the affirmative vote of the
Holders of not less than the specified percentage in aggregate Outstanding
Dollar Principal Amount of the Outstanding Notes of such Series, Class or
Tranche. Any resolution passed or decision taken at any meeting of Noteholders
duly held in accordance with this Indenture will be binding on all Noteholders
of the affected Series, Class or Tranche.
(e) The quorum at any meeting will be persons holding or representing
the Majority Holders of a Series, Class or Tranche or all Notes, as the case may
be; provided, however, that if any action is to be taken at that meeting
concerning an Action may be given by the Holders of not less than a specified
percentage in aggregate Outstanding Dollar Principal Amount of the Outstanding
Notes of a Series, Class or Tranche, the persons holding or representing such
specified percentage in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of such Series, Class or Tranche or all Notes will constitute
a quorum.
(f) The ownership of Bearer Notes will be proved as provided in
Subsection 104(c)(ii).
(g) The Issuer may make reasonable rules for other matters relating
to Action by or a meeting of Noteholders not otherwise covered by this Section,
including but not limited to the location or locations for such meeting, the
manner of voting at such meeting, the appointment and duties of inspectors of
the vote, the submission and examination of proxies, certificates and other
evidence of the right to vote and the appointment of a chairperson for the
meeting.
(h) As set forth in the applicable Pooling and Servicing Agreement
and the related Series Supplement, with respect to certain actions requiring the
consent or direction of Investor Certificateholders holding a specified
percentage of the aggregate unpaid amount outstanding of Investor Certificates
(whether by number of series or percentage of all outstanding Investor
Certificates depending on the manner of voting or consenting on such matter),
including consenting to certain amendments and terminating the related Master
Trust, the Issuer, as holder of any Collateral Certificate, will be deemed to
have voted in accordance with the Investor Certificateholders holding a majority
of the aggregate Invested Amount outstanding of such Investor Certificates which
are entitled to vote or consent on such matter; provided, however, that in the
event Investor Certificateholders holding equal portions of the Invested Amount
of such Investor Certificates vote in the positive and in the negative, without
taking into consideration the vote of the Issuer, as holder of such Collateral
Certificate, the Issuer shall be deemed to vote in the negative; provided
further, that if the Collateral Certificate is the sole Investor Certificate
outstanding which is entitled to vote or consent on such matter, the Issuer, as
holder thereof, will be deemed to have voted in the negative.
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Section 805. Reports by Issuer to the Commission. The Issuer will:
(a) file with the Indenture Trustee, within fifteen (15) days after
the Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act; or, if the Issuer is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with the
Indenture Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Indenture Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to all Registered Noteholders, as their names
and addresses appear in the Note Register, and notify all Holders of Bearer
Notes of such Series, Class or Tranche, by publication of such notice in an
Authorized Newspaper or as otherwise provided in the applicable Indenture
Supplement, within thirty (30) days after the filing thereof with the Indenture
Trustee, such summaries of any information, documents and reports required to be
filed by the Issuer pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
[END OF ARTICLE VIII]
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ARTICLE IX
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND
SERVICING AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 901. Supplemental Indentures and Amendments Without Consent
of Noteholders. Without the consent of the Holders of any Notes but with prior
notice to each Note Rating Agency, the Issuer and the Indenture Trustee, at any
time and from time to time, upon delivery of a Master Trust Tax Opinion for each
applicable Master Trust and an Issuer Tax Opinion and upon delivery by the
Issuer to the Indenture Trustee of an Officer's Certificate to the effect that
the Issuer reasonably believes that such amendment will not have an Adverse
Effect and is not reasonably expected to have an Adverse Effect at any time in
the future, the Issuer may amend this Indenture, including any Asset Pool
Supplement or any Indenture Supplement, or enter into one or more Asset Pool
Supplements or Indenture Supplements, in form satisfactory to the Indenture
Trustee, for any of the following purposes:
(a) to evidence the succession of another Entity to the Issuer, and
the assumption by any such successor of the covenants of the Issuer herein and
in the Notes; or
(b) to add to the covenants of the Issuer, or to surrender any right
or power herein conferred upon the Issuer by the Issuer, for the benefit of the
Holders of the Notes of any or all Series, Classes or Tranches (and if such
covenants or the surrender of such right or power are to be for the benefit of
less than all Series, Classes or Tranches of Notes, stating that such covenants
are expressly being included or such surrenders are expressly being made solely
for the benefit of one or more specified Series, Classes or Tranches); or
(c) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture; or
(d) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at the
date as of which this Indenture was executed or any corresponding provision in
any similar federal statute hereafter enacted; or
(e) to establish any form of Note, as provided in Article II, and to
provide for the issuance of any Series, Class or Tranche of Notes as provided in
Article III and to set forth the terms thereof, and/or to add to the rights of
the Holders of the Notes of any Series, Class or Tranche; or
(f) to evidence and provide for the acceptance of appointment by
another corporation as a successor Indenture Trustee hereunder with respect to
one or more Series, Classes or Tranches of Notes and to add to or change any of
the provisions of this Indenture as will be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Indenture
Trustee, pursuant to Section 711; or
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(g) to add any additional Early Redemption Events or Events of
Default in respect of the Notes of any or all Series, Classes or Tranches (and
if such additional Events of Default are to be in respect of less than all
Series, Classes or Tranches of Notes, stating that such Events of Default are
expressly being included solely for the benefit of one or more specified Series,
Classes or Tranches of Notes); or
(h) to provide for the consolidation of any Master Trust and the
Issuer into a single Entity or the transfer of assets in such Master Trust to
the Issuer after the termination of all Series of Investor Certificates (other
than the related Collateral Certificate or Collateral Certificates); or
(i) if one or more additional Transferors under any Transfer and
Administration Agreement or any Pooling and Servicing Agreement are added to, or
replaced under, any such Transfer and Administration Agreement or any such
Pooling and Servicing Agreement, or one or more additional Beneficiaries under
the Trust Agreement are added to, or replaced under, the Trust Agreement, to
make any necessary changes to the Indenture or any other related document; or
(j) to establish an Asset Pool and to set forth the terms thereof,
including the designation of Collateral thereto, and/or to add to the rights of
the Holders of Notes of any Series, Class or Tranche secured by an Asset Pool;
or
(k) to provide for additional or alternative forms of credit
enhancement for any Tranche of Notes; or
(l) to comply with any regulatory, accounting or tax laws; or
(m) to qualify for sale treatment under generally accepted accounting
principles.
Additionally, notwithstanding any provision of this Article IX to the
contrary, and in addition to (a) through (m) above, this Indenture, including
any Indenture Supplement or any Asset Pool Supplement, may also be amended
without the consent of the Indenture Trustee or any of the Noteholders, upon
delivery of a Master Trust Tax Opinion for each applicable Master Trust and an
Issuer Tax Opinion for the purpose of (i) adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture, any
Indenture Supplement or any Asset Pool Supplement, (ii) modifying in any manner
the rights of the Holders of the Notes under this Indenture, any Indenture
Supplement or any Asset Pool Supplement or (iii) adding additional Collateral
(including, but not limited to, adding additional Collateral Certificates) to an
existing Asset Pool; provided, however, that (i) the Issuer shall deliver to the
Indenture Trustee and the Owner Trustee an Officer's Certificate to the effect
that the Issuer reasonably believes that such amendment will not have an Adverse
Effect and is not reasonably expected to have an Adverse Effect at any time in
the future and (ii) each Note Rating Agency confirms in writing that such
amendment will not cause a Ratings Effect.
The Indenture Trustee may, but shall not be obligated to, enter into
any amendments which adversely affects the Indenture Trustee's rights, duties,
benefits, protections, privileges or immunities under this Indenture or
otherwise.
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Section 902. Supplemental Indentures with Consent of Noteholders. In
addition to any amendment permitted pursuant to Section 901 hereof, with prior
notice to each applicable Note Rating Agency and the consent of Holders of more
than 66?% in Outstanding Dollar Principal Amount of each Series, Class or
Tranche of Notes affected by such amendment of this Indenture, including any
Asset Pool Supplement and any Indenture Supplement, by Act of said Holders
delivered to the Issuer and the Indenture Trustee, the Issuer, and the Indenture
Trustee, as applicable, upon delivery of a Master Trust Tax Opinion for each
applicable Master Trust and an Issuer Tax Opinion, may enter into an amendment
of this Indenture for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes of each such
Series, Class or Tranche under this Indenture or any Indenture Supplement;
provided, however, that no such amendment of an Indenture Supplement will,
without the consent of the Holder of each Outstanding Note affected thereby:
(a) change the scheduled payment date of any payment of interest on
any Note, or change an Expected Principal Payment Date or Legal Maturity Date of
any Note;
(b) reduce the Stated Principal Amount of, or the interest rate on
any Note, or change the method of computing the Outstanding Dollar Principal
Amount, the Adjusted Outstanding Dollar Principal Amount or the Nominal
Liquidation Amount in a manner that is adverse to the Holder of any Note;
(c) reduce the amount of a Discount Note payable upon the occurrence
of an Early Redemption Event or other optional or mandatory redemption or upon
the acceleration of its Legal Maturity Date;
(d) impair the right to institute suit for the enforcement of any
payment on any Note;
(e) reduce the percentage in Outstanding Dollar Principal Amount of
the Outstanding Notes of any Series, Class or Tranche of Notes, the consent of
whose Holders is required for any such amendment, or the consent of whose
Holders is required for any waiver of compliance with the provisions of this
Indenture or of defaults hereunder and their consequences, provided for in this
Indenture;
(f) modify any of the provisions of this Section or Section 618,
except to increase any percentage of Holders required to consent to any such
amendment or to provide that other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(g) permit the creation of any lien or other encumbrance on the
Collateral of any Asset Pool that secures any Tranche of Notes that is prior to
the lien in favor of the Indenture Trustee for the benefit of the Holders of the
Notes of such Tranche;
(h) change any Place of Payment where any principal of, or interest
on, any Note is payable, unless otherwise provided in the applicable Indenture
Supplement;
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(i) change the method of computing the amount of principal of, or
interest on, any Note on any date; or
(j) make any other amendment not permitted by Section 901.
An amendment of this Indenture or an Indenture Supplement which
changes or eliminates any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one or more particular
Series, Class or Tranche of Notes, or which modifies the rights of the Holders
of Notes of such Series, Class or Tranche with respect to such covenant or other
provision, will be deemed not to affect the rights under this Indenture of the
Holders of Notes of any other Series, Class or Tranche.
It will not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed amendment or Indenture
Supplement, but it will be sufficient if such Act will approve the substance
thereof.
Section 903. Execution of Amendments and Supplemental Indentures. In
executing or accepting the additional trusts created by any amendment of this
Indenture or Indenture Supplement permitted by this Article IX or the
modifications thereby of the trusts created by this Indenture, the Indenture
Trustee will be entitled to receive, and (subject to Section 701 or the
applicable provisions of the related Asset Pool Supplement) will be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment or Indenture Supplement is authorized or permitted by this
Indenture and that all conditions precedent thereto have been satisfied. The
Indenture Trustee may, but will not (except to the extent required in the case
of an amendment or Indenture Supplement entered into under Subsections 901(d) or
901(f)) be obligated to, enter into any such amendment or Indenture Supplement
which affects the Indenture Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Amendments and Supplemental Indentures. Upon
the execution of any amendment of this Indenture, any Asset Pool Supplement or
any Indenture Supplement, or any supplemental indentures under this Article IX,
this Indenture and the related Asset Pool Supplement or Indenture Supplement
will be modified in accordance therewith with respect to each Series, Class or
Tranche of Notes affected thereby, or all Notes, as the case may be, and such
amendment or supplemental indenture will form a part of this Indenture and the
related Asset Pool Supplement or Indenture Supplement for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder will be bound thereby to the extent provided therein.
Section 905. Conformity with Trust Indenture Act. Every amendment of
this Indenture, any Asset Pool Supplement or any Indenture Supplement and every
supplemental indenture executed pursuant to this Article IX will conform to the
requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any amendment of this
Indenture, any Asset Pool Supplement or any Indenture Supplement or any
supplemental indenture pursuant to this
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Article may, and will if required by the Indenture Trustee, bear a notation in
form approved by the Indenture Trustee as to any matter provided for in such
amendment or supplemental indenture. If the Issuer will so determine, new Notes
so modified as to conform, in the opinion of the Indenture Trustee and the
Issuer, to any such amendment or supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Indenture Trustee
in exchange for Outstanding Notes.
Section 907. Amendments to the Trust Agreement.
(a) Subject to the provisions of the Trust Agreement, without the
consent of the Holders of any Notes or the Indenture Trustee, the Owner Trustee
(at the written direction of the Beneficiary) and the Beneficiary may amend the
Trust Agreement so long as such amendment will not have an Adverse Effect and is
not reasonably expected to have an Adverse Effect at any time in the future.
(b) Subject to the provisions of the Trust Agreement, (A) in the case
of a significant change in the permitted activities of the Issuer which is not
materially adverse to the Holders of the Notes, with the consent of the Majority
Holders of each Class or Tranche of Notes affected by such change, and (B) in
all other cases, with the consent of the Holders of more than 66"% in
Outstanding Dollar Principal Amount of the Outstanding Notes affected by such
amendment, by Action of said Holders delivered to the Indenture Trustee, the
Beneficiary and the Owner Trustee (at the written direction of the Beneficiary)
may amend the Trust Agreement for the purpose of adding, changing or eliminating
any provisions of the Trust Agreement or of modifying the rights of those
Noteholders.
[END OF ARTICLE IX]
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ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 1001. Payment of Principal and Interest. With respect to each
Series, Class or Tranche of Notes, the Issuer will duly and punctually pay the
principal of and interest on such Notes in accordance with their terms and this
Indenture, and will duly comply with all the other terms, agreements and
conditions contained in, or made in this Indenture for the benefit of, the Notes
of such Series, Class or Tranche.
Section 1002. Maintenance of Office or Agency. The Issuer will
maintain an office or agency in each Place of Payment where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of such office or agency. If at any time the Issuer will
fail to maintain such office or agency or will fail to furnish the Indenture
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Indenture
Trustee, and the Issuer hereby appoints the Indenture Trustee its agent to
receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies where the Notes of one or more Series, Classes or Tranches
may be presented or surrendered for any or all of such purposes specified above
and may constitute and appoint one or more Paying Agents for the payments of
such Notes, in one or more other cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment or rescission shall in any matter relieve the Issuer of its
obligations to maintain an office or agency in each Place of Payment for Notes
of any Series, Class or Tranche for such purposes. The Issuer will give prompt
written notice to the Indenture Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. Unless and
until the Issuer rescinds one or more of such appointments, the Issuer hereby
appoints the Indenture Trustee, at its principal office, as its Paying Agent in
New York, New York with respect to all Series, Classes and Tranches of Notes
having a Place of Payment in the City of New York, New York.
Section 1003. Money for Note Payments to be Held in Trust. The Paying
Agent, on behalf of the Indenture Trustee, will make distributions to
Noteholders from the Collection Account of the applicable Asset Pool or other
applicable Issuer Account pursuant to the provisions of any Asset Pool
Supplement or any Indenture Supplement and will report the amounts of such
distributions to the Indenture Trustee. Any Paying Agent will have the revocable
power to withdraw funds from the Collection Account of the applicable Asset Pool
or other applicable Issuer Account for the purpose of making the distributions
referred to above. The Indenture Trustee may revoke such power and remove the
Paying Agent if the Indenture Trustee determines in its sole discretion that the
Paying Agent has failed to perform its obligations under this Indenture, any
Asset Pool Supplement or any Indenture Supplement in any material respect. The
Paying Agent upon removal will return all funds in its possession to the
Indenture Trustee.
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The Issuer will cause each Paying Agent (other than the Indenture
Trustee) for any Series, Class or Tranche of Notes to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent will agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it so
agrees), subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal of or
interest on Notes of such Series, Class or Tranche in trust for the benefit of
the Persons entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee, give the
Indenture Trustee notice of any default by the Issuer (or any other obligor upon
the Notes of such Series, Class or Tranche) in the making of any such payment of
principal or interest on the Notes of such Series, Class or Tranche;
(c) if such Paying Agent is not the Indenture Trustee, at any time
during the continuance of any such default, upon the written request of the
Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if such Paying Agent is
not the Indenture Trustee, forthwith pay to the Indenture Trustee all sums held
by it in trust for the payment of Notes if at any time it ceases to meet the
standards described in this Section required to be met by a Paying Agent at the
time of its appointment; and
(e) comply with all requirements of the Internal Revenue Code or any
other applicable tax law with respect to the withholding from any payments made
by it on any Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any Series, Class
or Tranche of Notes or for any other purpose, pay, or by an Officer's
Certificate direct any Paying Agent to pay, to the Indenture Trustee all sums
held in trust by the Issuer or such Paying Agent in respect of each and every
Series, Class or Tranche of Notes as to which it seeks to discharge this
Indenture or, if for any other purpose, all sums so held in trust by the Issuer
in respect of all Notes, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which such sums were held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such
Paying Agent will be released from all further liability with respect to such
money.
Any money deposited with the Indenture Trustee or any Paying Agent,
or then held by the Issuer, in trust for the payment of the principal of or
interest on any Note of any Series, Class or Tranche and remaining unclaimed for
two years after such principal or interest has become due and payable will be
paid to the Issuer upon request in an Officer's Certificate, or (if then held by
the Issuer) will be discharged from such trust; and the Holder of such Note will
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money, and all liability of the Issuer as trustee
thereof, will thereupon cease. The Indenture Trustee or such
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Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer give to the Holders of the Notes as to which the money to
be repaid was held in trust, as provided in Section 106, a notice that such
funds remain unclaimed and that, after a date specified in the notice, which
will not be less than thirty (30) days from the date on which the notice was
first mailed or published to the Holders of the Notes as to which the money to
be repaid was held in trust, any unclaimed balance of such funds then remaining
will be paid to the Issuer free of the trust formerly impressed upon it.
Each Paying Agent will at all times have a combined capital and
surplus of at least $50,000,000 and be subject to supervision or examination by
a United States Federal or State authority or be regulated by or subject to the
supervision or examination of a governmental authority of a nation that is a
member of the Organization for Economic Co-operation and Development. If such
Paying Agent publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Paying Agent will be deemed to be its combined capital and surplus as set forth
in its most recent report of condition as so published.
Section 1004. Statement as to Compliance. The Issuer will deliver to
the Indenture Trustee and the Note Rating Agencies, on or before May 31 of each
year, beginning in 2003, a written statement signed by an Issuer Authorized
Officer stating that:
(a) a review of the activities of the Issuer during the prior year
and of the Issuer's performance under this Indenture and under the terms of the
Notes has been made under such Issuer Authorized Officer's supervision; and
(b) to the best of such Issuer Authorized Officer's knowledge, based
on such review, the Issuer has complied in all material respects with all
conditions and covenants under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or covenant (without
regard to any grace period or requirement of notice), specifying each such
default known to such Issuer Authorized Officer and the nature and status
thereof.
Section 1005. Legal Existence. The Issuer will do or cause to be done
all things necessary to preserve and keep in full force and effect its legal
existence.
Section 1006. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
Section 1007. Compliance with Laws. The Issuer will comply with the
requirements of all applicable laws, the noncompliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes or this Indenture.
Section 1008. Notice of Events of Default. The Issuer agrees to give
the Indenture Trustee and the Note Rating Agencies prompt written notice of each
Event of Default hereunder and each breach on the part of the Master Trust or
the Transferor of their respective
75
obligations under the applicable Pooling and Servicing Agreement or the
applicable Transfer and Administration Agreement, respectively, and any default
of a Derivative Counterparty.
Section 1009. Certain Negative Covenants. The Issuer will not:
(a) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts withheld in good
faith from such payments under the Internal Revenue Code or other applicable tax
law including foreign withholding);
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Indenture Trustee created by this
Indenture and the applicable Asset Pool Supplement to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien in favor of the Indenture
Trustee created by this Indenture) to be created on or extend to or otherwise
arise upon or burden the Collateral designated for inclusion in an Asset Pool or
any part thereof or any interest therein or the proceeds thereof;
(d) permit the lien in favor of the Indenture Trustee created by this
Indenture and the applicable Asset Pool Supplement not to constitute a valid
first priority security interest in the Collateral designated for inclusion in
an Asset Pool; or
(e) voluntarily dissolve or liquidate.
Section 1010. No Other Business. The Issuer will not engage in any
business other than as permitted under the Trust Agreement.
Section 1011. Rule 144A Information. For so long as any of the Notes
of any Series, Class or Tranche are "restricted securities" within the meaning
of Rule 144(a)(3) under the Securities Exchange Act, the Issuer agrees to
provide to any Noteholder of such Series, Class or Tranche and to any
prospective purchaser of Notes designated by such Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such Holder or prospective purchaser to satisfy the conditions set
forth in Rule 144A(d)(4) under the Securities Exchange Act.
Section 1012. Performance of Obligations.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the Collateral or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Trust Agreement, the applicable
Transfer and Administration Agreement, the applicable Pooling and Servicing
Agreement or such other instrument or agreement.
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(b) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, any Asset Pool
Supplement, any Indenture Supplement, the Trust Agreement and in the instruments
and agreements (including but not limited to, the applicable Pooling and
Servicing Agreement) relating to the Collateral designated for inclusion in each
Asset Pool, including but not limited to filing or causing to be filed all UCC
financing statements and amendments thereto required to be filed by the terms of
this Indenture and the Trust Agreement in accordance with and within the time
periods provided for herein and therein. Except as otherwise expressly provided
herein or therein, the Issuer shall not waive, amend, modify, supplement or
terminate this Indenture, any Asset Pool Supplement, any Indenture Supplement or
the Trust Agreement or any provision thereof without the consent of the Majority
Holders of the Notes of each adversely affected Series, Class or Tranche.
Section 1013. Issuer May Consolidate, Etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(1) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger (i) shall be a Person organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia, (ii) shall not be subject to regulation as an
"investment company" under the Investment Company Act and (iii) shall
expressly assume, by a supplemental indenture, executed and delivered to
the Indenture Trustee, in a form satisfactory to the Indenture Trustee, the
due and punctual payment of the principal of and interest on all Notes and
the performance of every covenant of this Indenture on the part of the
Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default or Early Redemption Event shall have occurred and be continuing;
(3) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that (i) such
consolidation or merger and such supplemental indenture comply with this
Section 1013, (ii) all conditions precedent in this Section 1013 relating
to such transaction have been complied with (including any filing required
by the Securities Exchange Act), and (iii) such Indenture Supplement is
duly authorized, executed and delivered and is valid, binding and
enforceable against such Person;
(4) the Issuer shall have received written confirmation from each
Note Rating Agency that there will be no Ratings Effect with respect to any
Outstanding Notes as a result of such consolidation or merger;
(5) the Issuer shall have received an Issuer Tax Opinion and a
Master Trust Tax Opinion for each applicable Master Trust;
(6) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
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(7) such action shall not be contrary to the status of the Issuer
as a qualified special purpose entity under existing accounting literature.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Collateral, substantially as an entirety
to any Person, unless:
(1) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America, any
state thereof, or the District of Columbia, (B) expressly assume, by a
supplemental indenture, executed and delivered to the Indenture Trustee, in
form satisfactory to the Indenture Trustee, the due and punctual payment of
the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as provided herein, (C)
expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and
subordinate to the lien and security interest of the Indenture Trustee
created by this Indenture, (D) expressly agree by means of such
supplemental indenture that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Securities Exchange Act in connection
with the Notes and (F) not be an "investment company" as defined in the
Investment Company Act;
(2) immediately after giving effect to such transaction, no Event
of Default or Early Redemption Event shall have occurred and be continuing;
(3) the Issuer shall have received written confirmation from each
Note Rating Agency that there will be no Ratings Effect with respect to any
Outstanding Notes as a result of such conveyance or transfer;
(4) the Issuer shall have received an Issuer Tax Opinion and a
Master Trust Tax Opinion for each applicable Master Trust;
(5) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(6) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such Indenture Supplement comply with this
Section 1013 and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Securities Exchange Act).
Section 1014. Successor Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the Issuer
substantially as an entirety in accordance with Section 1013 hereof, the Person
formed by or surviving such consolidation or merger (if other than the Issuer)
or the Person to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein. In the
78
event of any such conveyance or transfer, the Person named as the Issuer in the
first paragraph of this Indenture or any successor which shall theretofore have
become such in the manner prescribed in this Section 1014 shall be released from
its obligations under this Indenture as issued immediately upon the
effectiveness of such conveyance or transfer, provided that the Issuer shall not
be released from any obligations or liabilities to the Indenture Trustee or the
Noteholders arising prior to such effectiveness.
Section 1015. Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by this Indenture or the Trust Agreement, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section 1016. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 1017. Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or security
in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) distributions as contemplated by,
and to the extent funds are available for such purpose under, the Trust
Agreement and (y) payments to the Indenture Trustee pursuant to Section 707
hereof. The Issuer will not, directly or indirectly, make payments to or
distributions from any Collection Account except in accordance with this
Indenture or any Indenture Supplement.
Section 1018. No Borrowing. The Issuer will not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any additional
indebtedness, except for the Notes.
[END OF ARTICLE X]
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ARTICLE XI
EARLY REDEMPTION OF NOTES
Section 1101. Applicability of Article. Unless otherwise specified in
the applicable Indenture Supplement related to a Series, Class or Tranche of
Notes, pursuant to the terms of this Article XI, the Issuer will redeem and
pay, provided that funds are available, each affected Series, Class or Tranche
of Notes upon the occurrence of any Early Redemption Event. Unless otherwise
specified in the applicable Indenture Supplement relating to a Series, Class or
Tranche of Notes, or in the form of Notes for such Series, Class or Tranche,
the following are "Early Redemption Events":
(a) the occurrence of an Event of Default and acceleration of the
Notes of a Series, Class or Tranche pursuant to Article VI hereof;
(b) with respect to any Series, Class or Tranche of Notes, the
occurrence of the Expected Principal Payment Date of such Series, Class or
Tranche of Notes;
(c) the Issuer becoming an investment company within the meaning of
the Investment Company Act;
(d) with respect to any Series, Class or Tranche of Notes, (i) the
related Transferor shall file a petition or commence a proceeding (A) to take
advantage of any bankruptcy, conservatorship, receivership, insolvency, or
similar laws or (B) for the appointment of a trustee, conservator, receiver,
liquidator, or similar official for or relating to such Transferor or all or
substantially all of its property, (ii) the related Transferor shall consent or
fail to object to any such petition filed or proceeding commenced against or
with respect to it or all or substantially all of its property, or any such
petition or proceeding shall not have been dismissed or stayed within sixty (60)
days of its filing or commencement, or a court, agency, or other supervisory
authority with jurisdiction shall have decreed or ordered relief with respect to
any such petition or proceeding, (C) the related Transferor shall admit in
writing its inability to pay its debts generally as they become due, (D) the
related Transferor shall make an assignment for the benefit of its creditors, or
(E) the related Transferor shall voluntarily suspend payment of its obligations;
or
(e) with respect to any Series, Class or Tranche of Notes, any
additional Early Redemption Event specified in the Indenture Supplement for such
Series, Class or Tranche as applying to such Series, Class or Tranche of Notes.
The repayment price of a Tranche of Notes so redeemed will equal the
Outstanding principal amount of such Tranche, plus accrued, past due and
additional interest to but excluding the date of repayment, the payment of which
will be subject to the allocations, deposits and payments sections of the
related Asset Pool Supplement and Indenture Supplement.
If the Issuer is unable to pay the repayment price in full on the
Principal Payment Date following the end of the Monthly Period in which the
Early Redemption Event occurs, monthly payments on such Tranche of Notes will
thereafter be made on each following Principal Payment Date until the
Outstanding principal amount of such Series, Class or Tranche, plus all
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accrued, past due and additional interest, is paid in full or the Legal Maturity
Date occurs, whichever is earlier, subject to the allocations, deposits and
payments sections of the related Asset Pool Supplement and Indenture Supplement.
Any funds in any Supplemental Issuer Accounts for a repaid Tranche will be
applied to make the principal and interest payments on that Tranche on the
repayment date, subject to the allocations, deposits and payments sections of
the related Asset Pool Supplement and Indenture Supplement. Principal payments
on redeemed Tranches will be made first to the senior most Notes until paid in
full, then to the next subordinated Notes until paid in full.
Section 1102. Optional Repurchase. Unless otherwise provided in the
applicable Indenture Supplement for a Series, Class or Tranche of Notes, the
Servicer (as defined in the applicable Indenture Supplement) or any Affiliate
thereof has the right, but not the obligation, to redeem a Series, Class or
Tranche of Notes in whole but not in part on any day on or after the day on
which the aggregate Nominal Liquidation Amount (after giving effect to all
payments, if any, on that day) of such Series, Class or Tranche is reduced to
less than 5% of the highest Outstanding Dollar Principal Amount (or such other
percentage as shall be specified from time to time by such Servicer or any
Affiliate thereof, consistent with sale treatment under GAAP and regulatory
accounting principles); provided, however, that if such Class or Tranche of
Notes redeemed is of a Subordinated Class or Tranche of Notes, such Servicer or
any Affiliate thereof will not redeem such Notes if the provisions of the
related Indenture Supplement would prevent the payment of such Subordinated
Notes until a level of prefunding of the applicable Issuer Accounts for the
Senior Classes of Notes for that Series has been reached such that the amount of
such deficiency in the required subordination of a Senior Class of Notes is no
longer required to provide subordination protection for the Senior Classes of
that Series.
If such Servicer or any Affiliate thereof elects to redeem a Series,
Class or Tranche of Notes, it will cause the Issuer to notify the Holders of
such redemption at least thirty (30) days prior to the redemption date. Unless
otherwise specified in the Indenture Supplement or Terms Document applicable to
the Notes to be so redeemed, the redemption price of a Series, Class or Tranche
so redeemed will equal 100% of the Outstanding principal amount of such Tranche,
plus accrued, unpaid and additional interest or principal accreted and unpaid on
such Tranche to but excluding the date of redemption, the payment of which will
be subject to the allocations, deposits and payments sections of the related
Asset Pool Supplement and Indenture Supplement.
If the Issuer is unable to pay the redemption price in full on the
redemption date, monthly payments on such Series, Class or Tranche of Notes will
thereafter be made until the Outstanding principal amount of such Series, Class
or Tranche, plus all accrued and unpaid interest, is paid in full or the Legal
Maturity Date occurs, whichever is earlier, subject to Article V, Article VI and
the allocations, deposits and payments sections of the related Indenture
Supplement. Any funds in any Supplemental Issuer Accounts for a redeemed Tranche
will be applied to make the principal and interest payments on that Tranche on
the redemption date in accordance with the related Indenture Supplement.
Principal payments on redeemed Tranches will be made in accordance with the
related Indenture Supplement.
Section 1103. Notice. Promptly after the occurrence of any Early
Redemption Event or a redemption pursuant to Section 1102, the Issuer will
notify the Indenture Trustee and
81
the Note Rating Agencies in writing of the identity, Stated Principal Amount and
Outstanding Dollar Principal Amount of the affected Series, Class or Tranche of
Notes to be redeemed. Notice of redemption will promptly be given as provided in
Section 106. All notices of redemption will state (a) the date on which the
redemption of the applicable Series, Class or Tranche of Notes pursuant to this
Article will begin, which will be the Principal Payment Date next following the
end of the Monthly Period in which the applicable Early Redemption Event or
redemption pursuant to Section 1102 occurs, (b) the repayment price for such
Series, Class or Tranche of Notes and (c) the Series, Class or Tranche of Notes
to be redeemed pursuant to this Article XI.
[END OF ARTICLE XI]
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ARTICLE XII
MISCELLANEOUS
Section 1201. No Petition. The Indenture Trustee, by entering into
this Indenture, each Derivative Counterparty, by accepting its rights as a third
party beneficiary hereunder, each Supplemental Credit Enhancement Provider or
Supplemental Liquidity Provider, as applicable, by accepting its rights as a
third party beneficiary hereunder, and each Noteholder, by accepting a Note,
agrees that it will not at any time institute against any Transferor, any Master
Trust or the Issuer, or join in any institution against any Transferor, any
Master Trust or the Issuer of, any receivership, insolvency, bankruptcy or other
similar proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, this Indenture, any Derivative Agreement, any Supplemental Credit
Enhancement Agreement and any Supplemental Liquidity Agreement.
Section 1202. Trust Obligations. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer on the Notes or
under this Indenture or any certificate or other writing delivered in connection
herewith or therewith, against (i) the Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in the Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer or of any successor or assign of the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Owner Trustee has no such obligations in its individual
capacity).
Section 1203. Limitations on Liability.
(a) It is expressly understood and agreed by the parties hereto that
(i) this Indenture is executed and delivered by the Owner Trustee not
individually or personally but solely as Owner Trustee, in the exercise of the
powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as a personal representation, undertaking or
agreement by the Owner Trustee but is made and intended for the purpose of
binding only the Issuer, (iii) nothing herein contained will be construed as
creating any liability on the Owner Trustee individually or personally, to
perform any covenant of the Issuer either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties to this
Indenture and by any Person claiming by, through or under them and (iv) under no
circumstances will the Owner Trustee be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee, any Transferor,
the Administrator, the Beneficiary or any other beneficiary of the Issuer or any
of their respective officers, directors, employees or agents will have any
liability with respect to this Indenture, and recourse of any Noteholder may be
had solely to the Collateral designated for inclusion in the specific Asset Pool
and pledged to secure the applicable Notes.
83
Section 1204. Tax Treatment. The Issuer and the Noteholders agree
that the Notes are intended to be debt for federal, state and local income and
franchise tax purposes and agree to treat the Notes accordingly for all such
purposes, unless otherwise required by a taxing authority.
Section 1205. Actions Taken by the Issuer. Any and all actions that
are to be taken by the Issuer may be taken by either the Beneficiary or the
Owner Trustee on behalf of the Issuer.
Section 1206. Alternate Payment Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer,
with the written consent of the Indenture Trustee, may enter into any agreement
with any Holder of a Note providing for a method of payment or notice that is
different from the methods provided for in this Indenture for such payments or
notices. The Issuer will furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee will cause payments or notices, as
applicable, to be made in accordance with such agreements.
Section 1207. Termination of Issuer. The Issuer and the respective
obligations and responsibilities of the Indenture Trustee created hereby (other
than the obligation of the Indenture Trustee to make payments to Noteholders as
hereinafter set forth) shall terminate, except with respect to the duties
described in Subsection 1208(b), as provided in the Trust Agreement.
Section 1208. Final Distribution.
(a) The Issuer shall give the Indenture Trustee at least thirty (30)
days prior written notice of the Payment Date on which the Noteholders of any
Series, Class or Tranche may surrender their Notes for payment of the final
distribution on and cancellation of such Notes. Not later than the fifth day of
the month in which the final distribution in respect of such Series or Class is
payable to Noteholders, the Indenture Trustee shall provide notice to
Noteholders of such Series, Class or Tranche specifying (i) the date upon which
final payment of such Series, Class or Tranche will be made upon presentation
and surrender of Notes of such Series, Class or Tranche at the office or offices
therein designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such payment date is not applicable,
payments being made only upon presentation and surrender of such Notes at the
office or offices therein specified (which, in the case of Bearer Notes, shall
be outside the United States). The Indenture Trustee shall give such notice to
the Note Registrar and the Paying Agent at the time such notice is given to
Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any
Series, Class or Tranche (or the termination of the Issuer), except as otherwise
provided in this paragraph, all funds then on deposit in any Issuer Account
allocated to such Noteholders shall continue to be held in trust for the benefit
of such Noteholders, and the Paying Agent or the Indenture Trustee shall pay
such funds to such Noteholders upon surrender of their Notes, if certificated.
In the event that all such Noteholders shall not surrender their Notes for
cancellation within six (6) months after the date specified in the notice from
the Indenture Trustee described in paragraph (a), the Indenture Trustee shall
give a second notice to the
84
remaining such Noteholders to surrender their Notes for cancellation and receive
the final distribution with respect thereto (which surrender and payment, in the
case of Bearer Notes, shall be outside the United States). If within one year
after the second notice all such Notes shall not have been surrendered for
cancellation, the Indenture Trustee may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the remaining such Noteholders
concerning surrender of their Notes, and the cost thereof shall be paid out of
the funds in the Collection Account or any Supplemental Issuer Accounts of the
applicable Asset Pool held for the benefit of such Noteholders. The Indenture
Trustee and the Paying Agent shall pay to the Issuer any monies held by them for
the payment of principal or interest that remains unclaimed for two (2) years.
After payment to the Issuer, Noteholders entitled to the money must look to the
Issuer for payment as general creditors unless an applicable abandoned property
law designates another Person.
Section 1209. Termination Distributions. Upon the termination of the
Issuer pursuant to the terms of the Trust Agreement, the Indenture Trustee shall
release, assign and convey to the Beneficiary or any of its designees, without
recourse, representation or warranty, all of its right, title and interest in
the Collateral designated for inclusion in an Asset Pool, whether then existing
or thereafter created, all monies due or to become due and all amounts received
or receivable with respect thereto (including all moneys then held in any Issuer
Account) and all proceeds thereof, except for amounts held by the Indenture
Trustee pursuant to Section 1208(b). The Indenture Trustee shall execute and
deliver such instruments of transfer and assignment as shall be provided to it,
in each case without recourse, as shall be reasonably requested by the
Beneficiary to vest in the Beneficiary or any of its designees all right, title
and interest which the Indenture Trustee had in the Collateral and such other
property designated for inclusion in an Asset Pool.
Section 1210. Derivative Counterparty, Supplemental Credit
Enhancement Provider and Supplemental Liquidity Provider as Third-Party
Beneficiary. Each Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider is a third-party beneficiary of
this Indenture to the extent specified in the applicable Derivative Agreement,
Supplemental Credit Enhancement Agreement, Supplemental Liquidity Agreement or
Indenture Supplement.
[END OF ARTICLE XII]
85
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
by Deutsche Bank Trust Company Delaware,
as Owner Trustee and not in its
individual capacity
By: /s/ Michele Voon
--------------------------------------------
Name: Michele Voon
Title: Attorney-in-Fact
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By: /s/ Scott J. Tepper
--------------------------------------------
Name: Scott J. Tepper
Title: Assistant Vice President
86
STATE OF DELAWARE )
)ss:
COUNTY OF Hudson )
On October 9th, before me personally came Michele Voon, to me known,
who, being by me duly sworn, did depose and say that she resides at New Jersey;
that she is a Attorney-in-Fact of Deutsche Bank Trust Company Delaware, acting
not in its individual capacity but solely as Owner Trustee of the Capital One
Multi-asset Execution Trust, one of the parties described in and which executed
the above instrument; that [she][he] knows the corporate seal of the Owner
Trustee; that the seal affixed to that instrument is such corporate seal; that
it was affixed by authority of the board of directors of the corporation; and
that she signed her name thereto by like authority.
/s/ Tracy Salzmann
- -----------------------------
Name
_____________________________
[Notarial Seal]
87
Washington, DC )
)ss:
District of Columbia )
On the 9th day of October, 2002, before me personally came Scott J.
Tepper to me known, who, being by me duly sworn, did depose and say that he is
the Assistant Vice President of The Bank of New York, one of the entities
described in and which executed the foregoing instrument; the s/he signed
his/her name to the said instrument and that s/he has been authorized by The
Bank of New York to execute the foregoing instrument.
/s/ Shelia M. Jenkins
------------------------------------
Notary Public
My Commission Expires May 31, 2004
____________________________________
Notarial Seal
88
EXHIBIT A
[FORM OF] INVESTMENT LETTER
[Date]
The Bank of New York,
as Indenture Trustee
101 Barclay Street
Floor 8 West
New York, New York 10286
Attention: Corporate Trust Administration - Asset Backed Securities Unit
Capital One Multi-asset Execution Trust
c/o Deutsche Bank Trust Company Delaware, as Owner Trustee and not
in its individual capacity
E.A. Delle Donne Corporate Center,
Montgomery Building
1011 Centre Road
Wilmington, Delaware 19805-1266
Attn: ____________________
Re: Purchase of $___________* principal amount of Capital One
Multi-asset Execution Trust, Series [.], Class [.] Notes
Ladies and Gentlemen:
In connection with our purchase of the above Notes (the "Notes") we
confirm that:
(1) We understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), and are being sold to
us in a transaction that is exempt from the registration requirements of the
Securities Act;
(2) Any information we desire concerning the Notes or any other matter
relevant to our decision to purchase the Notes is or has been made available to
us;
(3) We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Notes, and we (and any account for which we are purchasing under paragraph
(4) below) are able to bear the economic risk of an investment in the Notes. We
(and any account for which we are purchasing under
- -----------------------------
*Not less than $50,000 minimum principal amount.
A-1
paragraph (4) below) are an "accredited investor" (as such term is defined in
Rule 501(a)(1), (2) or (3) of Regulation D under the Securities Act);
(4) We are acquiring the Notes for our own account or for accounts as to
which we exercise sole investment discretion and not with a view to any
distribution of the Notes, subject, nevertheless, to the understanding that the
disposition of our property shall at all times be and remain within our control;
(5) We agree that the Notes must be held indefinitely by us unless
subsequently registered under the Securities Act or an exemption from any
registration requirements of the Securities Act and any applicable state
securities law is available;
(6) We agree that in the event that at some future time we wish to dispose
of or exchange any of the Notes (such disposition or exchange not being
currently foreseen or contemplated), we will not transfer or exchange any of the
Notes unless:
(a)(i) the sale is of at least U.S. $250,000 principal amount of Notes
to an Eligible Purchaser (as defined below), (ii) a letter to substantially
the same effect as paragraphs (1), (2), (3), (4), (5) and (6) of this
letter is executed promptly by the purchaser and (3) all offers or
solicitations in connection with the sale, whether directly or through any
agent acting on our behalf, are limited only to Eligible Purchasers and are
not made by means of any form of general solicitation or general
advertising whatsoever; or
(b) the Notes are transferred pursuant to Rule 144 under the
Securities Act by us after we have held them for more than three years; or
(c) the Notes are sold in any other transaction that does not require
registration under the Securities Act and, if the Issuer, the Beneficiary,
the Administrator, the Indenture Trustee or the Note Registrar so requests,
we theretofore have furnished to such party an opinion of counsel
satisfactory to such party, in form and substance satisfactory to such
party, to such effect; or
(d) the Notes are transferred pursuant to an exception from the
registration requirements of the Securities Act under Rule 144A under the
Securities Act; and
(7) We understand that the Notes will bear a legend to substantially the
following effect:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR ANY PORTION HEREOF
MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE
PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO
HEREIN."
This legend may be removed if the Issuer, the Indenture Trustee and the
Note Registrar have received an opinion of counsel satisfactory to them, in form
and substance satisfactory to them, to the effect that the legend may be
removed.
"Eligible Purchaser" means either an Eligible Dealer or a corporation,
partnership or other entity which we have reasonable grounds to believe and do
believe can make representations with respect to itself to substantially the
same effect as the representations set forth herein. "Eligible Dealer" means any
corporation or other entity the principal business of which is acting as a
broker and/or dealer in securities. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Indenture, dated as of
_______ __, 2002, between Capital One Multi-asset Execution Trust and The Bank
of New York, as indenture trustee.
Very truly yours,
___________________________________
(Name of Purchaser)
By_________________________________
(Authorized Officer)
EXHIBIT B-1
[FORM OF] CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE INDENTURE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
Series [.], Class [.] Notes
[Insert title or sufficient description of Notes to be delivered]
We refer to that portion of the Temporary Global Note in respect of the
Series [.], Class [.] Notes to be exchanged for definitive Notes (the
"Submitted Portion") pursuant to this certificate (the "Notes") as provided in
the Indenture, dated as of _______ __, 200_ (as amended and supplemented, the
"Indenture") in respect of such issue. This is to certify that (i) we have
received a certificate or certificates, in writing or by tested telex, with
respect to each of the persons appearing in our records as being entitled to a
beneficial interest in the Submitted Portion and with respect to such person's
beneficial interest either (a) from such person, substantially in the form of
Exhibit B-2 to the Indenture, or (b) from _____________ ___, ______,
substantially in the form of Exhibit B-3 to the Indenture, and (ii) the
Submitted Portion includes no part of the Temporary Global Note excepted in such
certificates.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in such proceedings.
Dated: _____________ ___, ______, * [_____________________________________
as operator of the Euroclear System]
[Clearstream, Luxembourg]
By_____________________________________
- -------------------------------
*To be dated on the date of the proposed exchange.
B-1-1
EXHIBIT B-2
[FORM OF] CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY [.] WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED
INSTITUTIONAL BUYERS
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
Series [.], Class [.] Notes
In connection with the initial issuance and placement of the Series [.],
Class [.] Notes (the "Notes"), an institutional investor in the United States
(an "institutional investor") is purchasing [U.S.$/(pound)/(U)/SF] aggregate
principal amount of the Notes hold in our account at [ , as operator of the
Euroclear System] [Clearstream, Luxembourg] on behalf of such investor.
We reasonably believe that such institutional investor is a qualified
institutional buyer as such term is defined under Rule 144A of the Securities
Act of 1933, as amended.
[We understand that this certificate is required in connection with United
States laws. We irrevocably authorize you to produce this certificate or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered by this certificate.]
The Definitive Notes in respect of this certificate are to be issued in
registered form in the minimum denomination of [U.S.$/(pound)/(U)/SF] and such
Definitive Notes (and, unless the Indenture or terms document relating to the
Notes otherwise provides, any Notes issued in exchange or substitution for or on
registration of transfer of Notes) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO
U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS NOTE
IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO
HEREIN. THIS NOTE CANNOT BE EXCHANGED FOR A BEARER NOTE."
Dated: _____________ ___, ______,
[ ]
By_____________________________________
Authorized Officer
B-2-1
EXHIBIT B-3
[FORM OF] CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER
OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
CAPITAL ONE MULTI-ASSET EXECUTION TRUST,
Series [.], Class [.] Notes
This is to certify that as of the date hereof and except as provided in the
third paragraph hereof, the Series [.], Class [.] Notes held by you for our
account (the "Notes") (i) are owned by a person that is a United States person,
or (ii) are owned by a United States person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own
account or for resale, or (B) a United States person who acquired the Notes
through the foreign branch of a financial institution and who holds the Notes
through the financial institution on the date hereof (and in either case (A) or
(B), the financial institution hereby agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by a financial
institution for purposes of resale during the Restricted Period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). In addition,
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) certify that they have not
acquired the Notes for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We undertake to advise you by tested telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the Notes in
bearer form with respect to such of the Notes as then appear in your books as
being held for our account.
This certificate excepts and does not relate to [U.S.$/(pound)/(U)/SF]
principal amount of Notes held by you for our account, as to which we are not
yet able to certify beneficial ownership. We understand that delivery of
Definitive Notes in such principal amount cannot be made until we are able to so
certify.
B-3-1
We understand that this certificate is required in connection with certain
securities and tax laws in the United States of America. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy hereof to any interested party in such proceedings.
As used herein, "United States" means the United States of America, including
the States and the District of Columbia, its territories, its possessions and
other areas subject to its jurisdiction; and "United States Person" means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States, or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
Dated: _____________ ___, ______* By______________________________
Name:
As, or as agent for, the beneficial owner(s) of the interest in the Notes
to which this certificate relates.
- ------------------------
* This certificate must be dated on the earlier of the date of the first payment
of interest in repect of the Notes and of the date of the delivery of the Notes
in definitive form.
B-3-2