EX-4.2
MBNA CREDIT CARD MASTER NOTE TRUST
as Issuer
and
THE BANK OF NEW YORK
as Indenture Trustee
INDENTURE
dated as of May 24, 2001
EXHIBITS
EXHIBIT A [FORM OF] PAYMENT INSTRUCTIONS
EXHIBIT B [FORM OF] MONTHLY NOTEHOLDERS' STATEMENT
EXHIBIT C [FORM OF] INVESTMENT LETTER
EXHIBIT D-1 [FORM OF] CLEARANCE SYSTEM CERTIFICATE TO BE GIVEN TO
THE TRUSTEE BY EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
FOR DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A
PORTION OF A TEMPORARY GLOBAL NOTE
EXHIBIT D-2 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY [?] WITH RESPECT TO
REGISTERED NOTES SOLD TO QUALIFIED INSTITUTIONAL
BUYERS
EXHIBIT D-3 [FORM OF] CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR
CLEARSTREAM, LUXEMBOURG BY A BENEFICIAL OWNER OF
NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
______________________________
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE PROVISIONS
Trust Indenture
Act Section Indenture Section
310(a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10
(a)(4) Not
Applicable
(a)(5) 6.11
(b) 6.08, 6.11
(c) Not
Applicable
311(a) 6.12
(b) 6.12
(c) Not
Applicable
312(a) 7.01, 7.02(a)
(b) 7.02(b)
(c) 7.02(c)
313(a) 7.04
(b) 7.04
(c) 7.03,
7.04
(d) 7.04
314(a) 3.09, 7.03(a)
(b) 3.06
(c)(1) 2.11, 8.09(c),
12.01(a)
(c)(2) 2.11, 8.09(c),
12.01(a)
(c)(3) 2.11, 8.09(c),
12.01(a)
(d)(1) 2.11, 8.09(c),
12.01(b)
(d)(2) Not
Applicable
(d)(3) Not
Applicable
(e) 12.01(a)
315(a) 6.01(b)
(b) 6.02
(c) 6.01(c)
(d) 6.01(d)
(d)(1) 6.01(d)
(d)(2) 6.01(d)
(d)(3) 6.01(d)
(e) 5.14
316(a)(1)(A) 5.12
316(a)(1)(B) 5.13
316(a)(2) Not
Applicable
316(b) 5.08
317(a)(1) 5.04
317(a)(2) 5.04(d)
317(b) 5.04(a)
318(a) 12.07
THIS INDENTURE between MBNA CREDIT CARD MASTER NOTE TRUST,
a statutory business trust organized under the laws of the State of
Delaware (the "Issuer"), having its principal office at Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, 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 May 24, 2001.
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
The Issuer hereby grants to the Indenture Trustee for the
benefit and security of (a) the Noteholders, (b) each Derivative
Counterparty to a Derivative Agreement entered into in connection with
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 (the "Secured
Party"), a security interest in all of its right, title and interest,
whether now owned or hereafter acquired, in and to:
(i) the Collateral Certificate;
(ii) the Collection Account;
(iii) any Supplemental Account;
(iv) all sub-Accounts in the Collection Account or any
Supplemental Account;
(v) all investment property, money and other property
held in or through the Collection Account, any
Supplemental Account or any sub-Account thereof;
(vi) all rights, benefits and powers under any Derivative
Agreement relating to any tranche of Notes;
(vii) all rights of enforcement against any of the
representations and warranties made by the
Beneficiary pursuant to the Trust Agreement;
(viii) all present and future claims, demands, causes
of and choses in action in respect of any of the
foregoing and all interest, principal, payments and
distributions of any nature or type on any of the
foregoing;
(ix) all accounts, general intangibles, chattel paper,
instruments, documents, goods, money, investment
property, deposit accounts, certificates of deposit,
letters of credit, letter-of-credit rights and
advices of credit consisting of, arising from, or
relating to any of the foregoing; and
(x) all proceeds of the foregoing.
The collateral described above is referred to as the
"Collateral." The Security Interest in the Collateral is granted to
secure the Notes (and, to the extent specified in the applicable
Indenture Supplement or Derivative Agreement, the obligations under any
applicable Derivative Agreements) equally and ratably without
prejudice, priority or distinction between any Note and any other Note
by reason of difference in time of issuance or otherwise, except as
otherwise expressly provided in this Indenture, or in the Indenture
Supplement which establishes any 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 or any Indenture Supplement
and (iii) compliance by the Issuer with the provisions of this
Indenture or any Indenture Supplement. This Indenture is a security
agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the grant of such
Security Interest, and accepts the Collateral in trust hereunder in
accordance with the provisions hereof and agrees to perform the duties
herein to the end that the interests of the Noteholders may be
adequately and effectively protected.
Particular Notes and Derivative Agreements will benefit
from the Security Interest to the extent (and only to the extent)
proceeds of and distributions on the Collateral are allocated for their
benefit pursuant to this Indenture 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 and are to be
authenticated, issued and delivered, and in consideration of the
premises and the purchase of Notes by the Holders thereof, it is
mutually covenanted and agreed as follows, for the equal and
proportionate benefit of all Holders of the Notes or of a series, class
or tranche thereof, as the case may be:
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal,
interest and other amounts on the Notes and to make payments on
Derivative Agreements is limited in recourse as set forth in Section
711.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this
Indenture and of any 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 Series 2001-D 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."
"Accounts" means, collectively, the Collection Account and
any Supplemental Account, in each case including any sub-Accounts
therein.
"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 at such time, less any funds on deposit in the
Principal Funding Account or the related sub-Account, as applicable,
for such series, class or tranche at such time.
"Adverse Effect" means, whenever used in this Indenture
with respect to any series, class or tranche of Notes with respect to
any action, that such action will (a) at the time of its occurrence or
at any future date result in the occurrence of an Early Redemption
Event or Event of Default relating to such series, class or tranche, as
applicable, (b) adversely affect the amount of funds available to be
distributed to the Noteholders of any such series, class or tranche
pursuant to this Indenture or the timing of such distributions, or (c)
adversely affect the security interest of the Indenture Trustee in the
Collateral.
"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.
"Authenticating Agent" means any Person authorized by the
Indenture Trustee to authenticate Notes under Section 814.
"Authorized Newspaper" means, with respect to any tranche
of Notes, publication in the newspaper of record specified in the
applicable Indenture Supplement for that tranche, or if and so long as
Notes of that tranche are listed on any securities exchange and that
exchange so requires, in the newspaper of record required by the
applicable securities exchange, printed in any language specified in
the applicable Indenture Supplement or satisfying the requirements of
such exchange.
"Available Funds" (i) with respect to all series of Notes,
means the amount of Available Funds (as defined in the Series 2001-D
Supplement) which are payable to the Issuer pursuant to Section 4.06(a)
of the Pooling and Servicing Agreement as supplemented by the Series
2001-D Supplement plus any amounts to be treated as Available Funds
pursuant to Section 403(d) and (ii) with respect to any series of
Notes, has the meaning specified in the related Indenture Supplement.
"Available Funds Allocation Amount" means, on any date of
determination during any Monthly Period for any tranche, class or
series of Notes (exclusive of (a) any Notes within such tranche, class
or series which will be paid in full during such Monthly Period, and
(b) any Notes which will have a Nominal Liquidation Amount of zero
during such Monthly Period), an amount equal to the sum of (i) the
Nominal Liquidation Amount for such tranche, class or series, as
applicable, as of the last day of the preceding Monthly Period, plus
(ii) the aggregate amount of any increases in the Nominal Liquidation
Amount of such tranche, class or series, as applicable, as a result of
(x) the issuance of a new tranche of Notes or the issuance of
additional Notes in an Outstanding tranche of Notes, (y) the accretion
of principal on Discount Notes of such tranche, class or series, as
applicable, or (z) the release of prefunded amounts (other than
prefunded amounts deposited during such Monthly Period) for such
tranche, class or series, as applicable, from a principal funding sub-
account, in each case during such Monthly Period.
"Available Principal Amounts" (i) with respect to all
series of Notes, means the amount of Available Investor Principal
Collections (as defined in the Series 2001-D Supplement) which are
payable to the Issuer pursuant to Section 4.06(b)(i) or Section
4.06(c)(i) of the Pooling and Servicing Agreement as supplemented by
the Series 2001-D Supplement and (ii) with respect to any series of
Notes, has the meaning specified in the related Indenture Supplement.
"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 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
Newark, Delaware, are authorized or obligated by law, executive order
or governmental decree to be closed.
"class" means, with respect to any Note, the class
specified in the applicable Indenture Supplement.
"Collateral" is defined in the Granting Clause.
"Collateral Certificate" means the Series 2001-D
Certificate issued pursuant to the Pooling and Servicing Agreement and
the Series 2001-D Supplement, as amended, supplemented, restated or
otherwise modified from time to time.
"Collection Account" is defined in Section 402(a).
"Collections" is defined in Section 401.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange
Act, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on
such date.
"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 12
East, New York, New York 10286.
"Daily Available Funds Amount" means, for any day during
any Monthly Period, an amount equal to the product of (a) the amount
determined pursuant to clause (i) of the definition of Available Funds
(as defined in the Series 2001-D Supplement) for such Monthly Period
minus, if MBNA or The Bank of New York is the Servicer, the Servicer
Interchange (as defined in the Series 2001-D Supplement) for such
Monthly Period and (b) the percentage equivalent of a fraction, the
numerator of which is the Available Funds Allocation Amount for such
series, class or tranche of Notes for such day and the denominator of
which is the Available Funds Allocation Amount for all series of Notes
for such day.
"Daily Principal Amount" means, for any day during any
Monthly Period on which Collections of Principal Receivables are
processed pursuant to Section 4.05 of the Series 2001-D Supplement for
any series, class or tranche of Notes, an amount equal to the product
of (a) the aggregate amount allocated to the Investor
Certificateholders (as defined in the Series 2001-D Supplement)
pursuant to Section 4.05(a)(ii) or 4.05(b)(ii) of the Pooling and
Servicing Agreement as supplemented by the Series 2001-D Supplement and
(b) the percentage equivalent of a fraction, the numerator of which is
the Principal Allocation Amount for such series, class or tranche of
Notes for such day and the denominator of which is the Principal
Allocation Amount for all series of Notes for such day.
"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" means (a) United States dollars, or (b)
denominated in United States dollars.
"Early Redemption Event" is defined in Section 1201.
"Effective Date" means the date on which this Indenture is
executed and delivered by the parties hereto.
"Entity" means any Person other than an individual or
government (including any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"Event of Default" is defined in Section 701.
"Excess Available Funds Sharing Group" means all Excess
Available Funds Sharing Series that have the same Excess Available
Funds Sharing Group designation.
"Excess Available Funds Sharing Series" means a series
that, pursuant to the Indenture Supplement therefor, will share certain
excess Available Funds with other series in the same Excess Available
Funds Sharing Group, as more specifically set forth in such Indenture
Supplement.
"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 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 Excess
Available Funds Sharing Group, Reallocation Group or any group
established by an Indenture Supplement) in the applicable Indenture
Supplement. A particular series may be included in more than one group
if the Indenture Supplement for such series so provides.
"Holder," when used with respect to any Note, means a
Noteholder.
"Indenture" or "this Indenture" means this Indenture as
originally executed and as amended, supplemented, restated or otherwise
modified from time to time by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and
will include the terms of particular series, classes or tranches of
Notes created as contemplated by Section 301.
"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 1001,
together with any applicable terms document related to such Indenture
Supplement and any amendment to the Indenture Supplement executed
pursuant to Section 1001 or 1002, 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 tranches of Dollar Interest-bearing Notes, the aggregate
initial principal amount of the Outstanding Notes of such tranche, and
(b) with respect to tranches of Discount Notes and foreign currency
Notes, the amount specified in the applicable Indenture Supplement as
the Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at
a stated or computed rate on the principal amount thereof. A Note may
be both an Interest-bearing Note and a Discount Note.
"Interest 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.
"Investor Certificate" is defined in the Pooling and
Servicing Agreement.
"Investor Certificateholder" is defined in the Pooling and
Servicing Agreement.
"Investor Interest" is defined in the Series 2001-D
Supplement.
"Investment Company Act" means the Investment Company Act
of 1940, as amended.
"Issuer" is defined in the first paragraph of this
Indenture.
"Issuer Authorized Officer" means (a) an authorized
signatory of the Owner Trustee, or (b) the chairman or vice-chairman of
the board of directors, chairman or vice-chairman of the executive
committee of the board of directors, the president, any vice-president,
the secretary, any assistant secretary, the treasurer, or any assistant
treasurer, in each case of the Beneficiary, or any other officer or
employee of the Beneficiary who is authorized to act on behalf of the
Issuer.
"Issuer Certificate" means a certificate (including an
Officer's Certificate) signed in the name of an Issuer Authorized
Officer, or the Issuer by an Issuer Authorized Officer and, in each
case delivered to the Indenture Trustee relating to, among other
things, the issuance of a new 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 in the employ of
the Beneficiary.
"Issuer Tax Opinion" means, with respect to any action, an
Opinion of Counsel to the effect that, for 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 a majority
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 MBNA Master Credit Card Trust II,
established pursuant to the Pooling and Servicing Agreement.
"Master Trust Tax Opinion" means, with respect to any
action, an Opinion of Counsel to the effect that, for Federal income
tax purposes, (a) such action will not adversely affect the tax
characterization as debt of the Investor Certificates, as defined in
the Pooling and Servicing Agreement, of any outstanding series or class
under the Master Trust that were characterized as debt at the time of
their issuance, (b) following such action the 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, as defined in the Pooling and Servicing Agreement.
"MBNA" means MBNA America Bank, National Association and
its successors and assigns.
"Monthly Interest Accrual Date" means, with respect to any
Outstanding series, class or tranche of Notes:
(a) each Interest Payment Date for such series, class or
tranche, and
(b) for any Monthly Period in which no Interest Payment
Date for such series, class or tranche occurs, the date in such Monthly
Period corresponding numerically to the next Interest Payment Date for
such series, class or tranche of Notes, or in the case of a series,
class or tranche of Discount Notes, the Expected Principal Payment Date
for that series, class or tranche, or as otherwise specified in the
applicable Indenture Supplement for such series, class or tranche of
Notes; provided, however, that
(i) for the Monthly Period in which a series, class or
tranche of Notes is issued, the date of issuance of such series,
class or tranche will be the first Monthly Interest Accrual Date
for such Monthly Period for such series, class or tranche of
Notes,
(ii) for the Monthly Period next following the Monthly
Period in which a series, class or tranche of Notes is issued,
unless otherwise indicated in the related Indenture Supplement,
the first day of such Monthly Period will be the first Monthly
Interest Accrual Date in such next following Monthly Period for
such series, class or tranche of Notes,
(iii) any date on which proceeds from a sale of Receivables
following an Event of Default and acceleration of any tranche of
Notes are deposited into the interest funding account for such
Notes will be a Monthly Interest Accrual Date for such tranche of
Notes,
(iv) if there is no such numerically corresponding date in
such Monthly Period, then the Monthly Interest Accrual Date will
be the last Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such
Monthly Period is not a Business Day, then the Monthly Interest
Accrual Date will be the next following Business Day (unless such
Business Day would fall in the following Monthly Period in which
case the Monthly Interest Accrual Date will be the last Business
Day of such earlier month).
"Monthly Noteholders' Statement" means a report
substantially in the form of Exhibit B, as the same may be supplemented
as set forth in the related Indenture Supplement.
"Monthly Period" has the meaning specified in the Series
2001-D Supplement.
"Monthly Principal Accrual Date" means, with respect to any
Outstanding series, class or tranche of Notes:
(a) for any Monthly Period in which an Expected Principal
Payment Date for such series, class or tranche occurs, such Expected
Principal Payment Date, or as otherwise specified in the applicable
Indenture Supplement for such tranche of Notes, and
(b) for any Monthly Period in which no Expected Principal
Payment Date for such series, class or tranche occurs, the date in such
Monthly Period corresponding numerically to the next Expected Principal
Payment Date for such tranche of Notes (or for any month following the
last Expected Principal Payment Date, the date in such month
corresponding numerically to the preceding Expected Principal Payment
Date for such tranche of Notes), or as otherwise specified in the
applicable Indenture Supplement, for such tranche of Notes; provided,
however, that:
(i) following a Pay Out Event as described in subsection
9.01(a) of the Pooling and Servicing Agreement, the second
Business Day following such Pay Out Event shall be a Monthly
Principal Accrual Date,
(ii) any date on which prefunded excess amounts are
released from any principal funding subaccount and deposited into
the principal funding subaccount of any tranche of Notes on or
after the Expected Principal Payment Date for such tranche of
Notes will be a Monthly Principal Accrual Date for such tranche
of Notes,
(iii) any date on which proceeds from a sale of Receivables
following an Event of Default and acceleration of any tranche of
Notes are deposited into the principal funding account for such
Notes will be a Monthly Principal Accrual Date for such tranche
of Notes,
(iv) if there is no numerically corresponding date in such
Monthly Period, then the Monthly Principal Accrual Date will be
the last Business Day of such Monthly Period, and
(v) if such numerically corresponding date in such
Monthly Period is not a Business Day, the Monthly Principal
Accrual Date will be the next following Business Day (unless such
Business Day would fall in the following month in which case the
Monthly Principal Accrual Date will be the last Business Day of
such earlier Monthly Period).
"Monthly Principal Payment" means, with respect to any
series of Notes, an amount, not less than zero, equal to (a) the
Targeted Principal Deposit Amount, plus (b) the Reallocated Principal
Amount, minus (c) Reallocated Available Funds, each with respect to
such series of Notes for such Monthly Period.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto.
"Nominal Liquidation Amount" means, with respect to any
Outstanding tranche of Notes, an amount determined in accordance with
the applicable Indenture Supplement. The Nominal Liquidation Amount
for a series of Notes will be the sum of the Nominal Liquidation
Amounts of all of the tranches of Notes of that series.
"non-Performing," with respect to a Derivative Agreement,
means not Performing.
"Note" or "Notes" means any note or notes of any series,
class or tranche authenticated and delivered from time to time under
this Indenture.
"Note Accumulation Period" means, with respect to any
series, class or tranche of Notes, the period commencing on the first
day of the Monthly Period for which there is a Targeted Principal
Deposit Amount with respect to such series, class or tranche of Notes
and ending on the last day of the Monthly Period preceding the next
following Monthly Period for which there is no Targeted Principal
Deposit Amount with respect to such series, class or tranche of Notes;
provided, however, that, with respect to any tranche of Notes which has
been accelerated following an event of default, has had an early
redemption event or will be partially redeemed during a partial or
limited amortization, the related Note Accumulation Period will
commence on the effective date of such acceleration, early redemption
event or partial or limited amortization period.
"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 in the employ 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," when used 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, MBNA or any Affiliate thereof 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;
(c) any Notes which are deemed to have been paid in full
pursuant to Section 503; and
(d) any such Notes in exchange for or in lieu of which
other Notes have been authenticated and delivered pursuant to this
Indenture, or which will have been paid pursuant to the terms of
Section 306 (except with respect to any such Note as to which proof
satisfactory to the 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 given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, and for purposes of Section 904, Notes beneficially
owned by the Issuer or MBNA or any Affiliate of the Issuer or MBNA will
be disregarded and deemed not to be Outstanding. In determining
whether the Indenture Trustee will be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Notes which an Indenture Trustee Authorized Officer knows
to be owned by the Issuer or MBNA or any Affiliate of the Issuer or
MBNA will be so disregarded. Notes so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee creates to the
satisfaction of the Indenture Trustee the pledgee's right to act as
owner with respect to such Notes and that the pledgee is not the
Issuer, MBNA or any other obligor upon the Notes or any Affiliate of
the Issuer, MBNA or such other obligor.
"Outstanding Dollar Principal Amount" means at any time,
(a) with respect to any series, class or tranche of non-
Discount Notes, the aggregate Initial Dollar Principal Amount of the
Outstanding Notes of such series, class or tranche at such time, less
the amount of any withdrawals from the Principal Funding sub-Account
for such tranche of Notes for payment of principal to the Holders of
such tranche or the applicable Derivative Counterparty pursuant to the
related Indenture Supplement, and
(b) with respect to any series, class or tranche of
Discount Notes, an amount of the Outstanding Notes of such series,
class or tranche calculated by reference to the applicable formula 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.
"Owner Trustee" means Wilmington Trust Company, not in its
individual capacity but solely as owner trustee of the Issuer, and each
of its successors and assigns.
"Paying Agent" means any Person authorized by the Issuer to
pay the principal of or interest on any Notes on behalf of the Issuer,
which shall initially be the Indenture Trustee.
"Payment Date" means, with respect to any series, class or
tranche of Notes, the applicable Principal Payment Date or Interest
Payment Date.
"Payment Instruction" means an instruction substantially in
the form of Exhibit A, or such other form as the Issuer may determine,
as the same may be supplemented as set forth in the related Indenture
Supplement.
"Performing" means, with respect to any Derivative
Agreement, no payment default or repudiation of performance by a
Derivative Counterparty has occurred, and such Derivative Agreement has
not been terminated.
"Permanent Global Note" is defined in Section 205.
"Permitted Investments" means, unless otherwise provided in
the Indenture Supplement with respect to any series of Notes:
(a) instruments, investment property or other property
consisting of:
(i) obligations of or fully guaranteed by the United
States of America;
(ii) time deposits or certificates of deposit of any
depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (or
domestic branches of foreign depository institutions or trust
companies) and subject to supervision and examination by federal
or state banking or depository institution authorities; provided,
however, that at the time of the Indenture Trustee's investment
or contractual commitment to invest therein, the certificates of
deposit or short-term deposits of such depository institution or
trust company shall have a credit rating from Moody's and
Standard & Poor's of P-1 and A-1+, respectively, and, if rated by
Fitch, F1+ from Fitch;
(iii) commercial paper (including but not limited to asset
backed commercial paper) having, at the time of the Indenture
Trustee's investment or contractual commitment to invest therein,
a rating from Moody's and Standard & Poor's of P-1 and A-1+,
respectively, and, if rated by Fitch, F1+ from Fitch;
(iv) bankers' acceptances issued by any depository
institution or trust company described in clause (a)(ii) above;
and
(v) investments in money market funds rated AAA-m or AAA-
mg by Standard & Poor's and Aaa by Moody's or otherwise approved
in writing by each Note Rating Agency;
(b) demand deposits in the name of the Indenture Trustee
in any depository institution or trust company referred to in clause
(a)(ii) above;
(c) uncertificated securities that are registered in the
name of the Indenture Trustee upon books maintained for that purpose by
the issuer thereof and identified on books maintained for that purpose
by the Indenture Trustee as held for the benefit of the Noteholders,
and consisting of shares of an open end diversified investment company
which is registered under the Investment Company Act, and which
(i) invests its assets exclusively in obligations of or guaranteed by
the United States of America or any instrumentality or agency thereof
having in each instance a final maturity date of less than one year
from their date of purchase or other Permitted Investments, (ii) seeks
to maintain a constant net asset value per share, (iii) has aggregate
net assets of not less than $100,000,000 on the date of purchase of
such shares and (iv) with respect to which each Note Rating Agency
confirms in writing that such investment will not cause a Ratings
Effect; and
(d) any other investment if each Note Rating Agency
confirms in writing that such investment will not cause a Ratings
Effect.
"Person" means any individual, corporation, estate,
partnership, limited liability company, limited liability partnership,
joint venture, association, joint-stock company, business trust, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to any tranche of
Notes issued hereunder, the city or political subdivision so designated
with respect to such tranche of Notes in accordance with the provisions
of Section 301.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement, dated as of August 4, 1994, between MBNA, as
Seller and Servicer, and The Bank of New York, as trustee, as 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 Allocation Amount" shall mean, on any date of
determination during any Monthly Period for any tranche, class or
series of Notes (exclusive of (x) any Notes within such tranche, class
or series which will be paid in full during such Monthly Period and
(y) any notes which will have a Nominal Liquidation Amount of zero
during such Monthly Period), an amount equal to the sum of (a) for any
Notes within such tranche, class or series of Notes in a Note
Accumulation Period, the sum of the Nominal Liquidation Amounts for
such Notes as of the close of business on the day prior to the
commencement of the most recent Note Accumulation Period for such
Notes, and (b) for all other Notes Outstanding within such tranche,
class or series of Notes, (i) the sum of the Nominal Liquidation
Amounts for such Notes, each as of the close of business on the last
day of the immediately preceding Monthly Period (or, with respect to
the first Monthly Period for any such series, class or tranche of
Notes, the Initial Dollar Principal Amount of such Notes), plus (ii)
the aggregate amount of any increases in the Nominal Liquidation Amount
of such Notes as a result of (x) the issuance of additional Notes in an
Outstanding series, class or tranche of Notes, (y) the accretion of
principal on Discount Notes of such tranche, class or series, as
applicable, or (z) the release of prefunded amounts (other than
prefunded amounts deposited during such Monthly Period) for such
tranche, class or series, as applicable, from a principal funding sub-
Account, in each case during such Monthly Period on or prior to such
date.
"Principal Excess" means for any series of Notes, with
respect to any Monthly Period, the excess, if any, of (a) the sum of
the Daily Principal Amounts for each day during such Monthly Period for
such series of Notes, minus Reallocated Principal Amounts for the
related Monthly Period for such series, over (b) an amount equal to the
Targeted Principal Deposit Amount for the related Monthly Period for
such series; provided, however, that if the Rapid Amortization Period
(as defined in the Series 2001-D Supplement) has commenced, the amount
computed pursuant to clause (b) shall be the Nominal Liquidation Amount
of such series of Notes.
"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.
"Principal Shortfall" means for any series of Notes, with
respect to any Monthly Period, the excess, if any, of (a) an amount
equal to the Targeted Principal Deposit Amount for the related Monthly
Period for such series, over (b) the sum of the Daily Principal Amounts
for each day during such Monthly Period for such series of Notes, plus
Reallocated Available Funds for the related Monthly Period for such
series, minus Reallocated Principal Amounts for the related Monthly
Period for such series; provided, however, that if the Rapid
Amortization Period (as defined in the Series 2001-D Supplement) has
commenced, the amount computed pursuant to clause (a) shall be the
Nominal Liquidation Amount of such series of Notes.
"Qualified Account" means either (a) a segregated account
(including a securities account) with a Qualified Institution or (b) a
segregated trust account with the corporate trust department of a
depository institution organized under the laws of the United States of
America or any one of the States thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so
long as any of the securities of such depository institution shall have
a credit rating from each Note Rating Agency in one of its generic
rating categories which signifies investment grade.
"Qualified Institution" means (a) a depository institution,
which may include the Indenture Trustee or the Owner Trustee (so long
as it is a paying agent under the Indenture), organized under the laws
of the United States of America or any one of the States thereof or the
District of Columbia, the deposits in which are insured by the FDIC and
which at all times has a short-term unsecured debt rating in the
applicable investment category of each Note Rating Agency or (b) a
depository institution acceptable to each Note Rating Agency.
"Ratings Effect" means a reduction, qualification or
withdrawal of any then current rating of the Notes.
"Reallocated Available Funds" means, with respect to any
series of Notes for any Monthly Period, the aggregate amount of series
Available Funds to be deposited into a principal funding account, paid
to noteholders or otherwise treated as series Available Principal
Amounts on the related Transfer Date pursuant to the related Indenture
Supplement.
"Reallocated Principal Amount" means, with respect to any
series of Notes for any Monthly Period, the aggregate amount of series
Available Principal Amounts to be deposited into an interest funding
account, paid to the Servicer as a portion of the Net Servicing Fee or
otherwise treated as series Available Funds on the related Transfer
Date pursuant to the related Indenture Supplement; provided however,
that the Reallocated Principal Amount for any series of Notes for any
Monthly Period shall not exceed the sum of the Daily Principal Amounts
for each day during such Monthly Period for the subordinated notes of
such series of Notes.
"Reallocation Group" means all Reallocation Series that
have the same Reallocation Group designation.
"Reallocation Series" means a series that, pursuant to the
Indenture Supplement therefor, will share certain Available Funds or
other specified amounts within a specified Reallocation Group with
other series in the same Reallocation Group, as more specifically set
forth in such Indenture Supplement.
"Receivables" is defined in the Pooling and Servicing
Agreement.
"Record Date" for the interest or principal payable on any
Note on any applicable Payment Date means the last day of the month
before the related Interest Payment Date or Principal Payment Date, as
applicable, unless otherwise specified in the applicable Indenture
Supplement.
"Registered Note" means a Note issued in registered form.
"Registered Noteholder" means a holder of a Registered
Note.
"Required Subordinated Amount" means, with respect to any
tranche of a senior class of Notes, the amount specified in the related
Indenture Supplement.
"Secured Party" is defined in the Granting Clause.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended from time to time.
"Security Interest" means the security interest granted
pursuant to the Granting Clause.
"Seller" means MBNA in its capacity as Seller under the
Pooling and Servicing Agreement.
"senior class," with respect to a class of Notes of any
series, has the meaning specified in the related Indenture Supplement.
"series" means, with respect to any Note, the series
specified in the applicable Indenture Supplement.
"Series Available Funds Shortfalls," with respect to any
Excess Available Funds Sharing Series, has the meaning specified in the
related Indenture Supplement.
"Series 2001-D Supplement" means the Series 2001-D
Supplement to the Pooling and Servicing Agreement, dated as of May 24,
2001, as amended, supplemented, restated or otherwise modified from
time to time.
"Servicer" is defined in the Pooling and Servicing
Agreement.
"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.
"sub-Account" means each portion of an Account designated
as such pursuant to this Indenture or the related Indenture 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 Account" means the trust account or accounts
designated as such and established pursuant to Section 402(a).
"Targeted Interest Deposit Amount," for each series, class
or tranche of Notes, is defined in the related Indenture Supplement.
"Targeted Principal Deposit Amount," for each series, class
or tranche of Notes, is defined in the related Indenture Supplement
"Temporary Global Note" is defined in Section 205.
"terms document" means, with respect to any series, class
or tranche of Notes, the Issuer Certificate or a supplement or terms
document to the Indenture Supplement that establishes such series,
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 Date" is defined in the Pooling and Servicing
Agreement.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of May 24, 2001, between MBNA, as Beneficiary, and
Wilmington Trust Company, as Owner Trustee, as amended, supplemented,
restated or supplemented from time to time.
"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 1005.
"UCC" means, unless the context otherwise requires, the
Uniform Commercial Code, as in effect in the relevant jurisdiction.
"U.S. Depository" means, unless otherwise specified by the
Issuer pursuant to either Section 204, 206, or 301, with respect to
Notes of any tranche issuable or issued as 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 regulation.
"Weighted Average Principal Allocation Amount" means, with
respect to any period for any tranche, class or series of Notes, the
sum of the Principal Allocation Amounts for such tranche, class or
series, as applicable, as of the close of business on each day during
such period divided by the actual number of days in such period.
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 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 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 1104) will include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that such individual has made such
examination or investigation as is necessary to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be
certified by, or covered by an opinion of, one or more specified
Persons, one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to the other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless the Issuer knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations are erroneous. Any such certificate or
opinion of, or representation by, counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, the Issuer stating that the information with
respect to such factual matters is in the possession of the Issuer,
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations are erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
Section 104. Acts of Noteholders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action (collectively, "action")
provided by this Indenture to be given or taken by Noteholders of any
series, class or tranche may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such
Noteholders in person or by an agent duly appointed in writing; and,
except as herein 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 the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such
agent will be sufficient for any purpose of this Indenture and (subject
to Section 801) conclusive in favor of the Indenture Trustee and the
Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a
witness to such execution or by the certificate of any notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
an officer of a corporation or a member of a partnership, on behalf of
such corporation or partnership, such certificate or affidavit will
also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of
the person executing the same, may also be proved in any other manner
which the Indenture Trustee deems sufficient.
(c) The ownership of Registered Notes will be
proved by the Note Register.
(ii) The ownership of Bearer Notes or coupons will
be proved by the production of such Bearer Notes or coupons or by
a certificate, satisfactory to the Issuer, executed by any bank,
trust company or recognized securities dealer, wherever situated,
satisfactory to the Issuer. Each such certificate will be dated
and will state that on the date thereof a Bearer Note or coupon
bearing a specified serial number was deposited with or exhibited
to such bank, trust company or recognized securities dealer by
the Person named in such certificate. Any such certificate may
be issued in respect of one or more Bearer Notes or coupons
specified therein. The holding by the Person named in any such
certificate of any Bearer Note specified therein will be presumed
to continue for a period of one year from the date of such
certificate unless at the time of any determination of such
holding (A) another certificate bearing a later date issued in
respect of the same Bearer Note or coupon produced, (B) the
Bearer Note or coupon specified in such certificate is produced
by some other Person or (C) the Bearer Note or coupon specified
in such certificate has ceased to be Outstanding.
(d) If the Issuer will solicit from the Holders any
action, the Issuer may, at its option, by an Officer's Certificate, fix
in advance a record date for the determination of Holders entitled to
give such action, but the Issuer will have no obligation to do so. If
the Issuer does not so fix a record date, such record date will be the
later of 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 901 before such solicitation.
Such action may be given before or after the record date, but only the
Holders of record at the close of business on the record date will be
deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Notes Outstanding have authorized or agreed
or consented to such action, and for that purpose the Notes Outstanding
will be computed as of the record date; provided that no such
authorization, agreement or consent by the Holders on the record date
will be deemed effective unless it will become effective pursuant to
the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other 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.
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,
(a) the Indenture Trustee by any Noteholder or by the
Issuer will be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Indenture Trustee at its
Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any
Noteholder will be sufficient for every purpose hereunder (except as
provided in Section 701(c)) if in writing and mailed, first-class
postage prepaid, to the Issuer addressed to it at the address of its
principal office 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 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 Registered Note affected by such event, at such
Noteholder's address as it appears in the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Registered
Noteholders is given by mail, facsimile, electronic transmission or
delivery neither the failure to mail, send by facsimile, electronic
transmission or deliver such notice, nor any defect in any notice so
mailed, to any particular Noteholders will affect the sufficiency of
such notice with respect to other Noteholders and any notice that is
mailed, sent by facsimile, electronic transmission or delivered in the
manner herein provided shall conclusively have been presumed to have
been duly given.
Where this Indenture, any Indenture Supplement or any
Registered Note provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver will be the equivalent of
such notice. Waivers of notice by Registered Noteholders will be filed
with the Indenture Trustee, but such filing will not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
(b) In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or otherwise, it will be
impractical to mail notice of any event to any Holder of a Registered
Note when such notice is required to be given pursuant to any provision
of this Indenture, then any method of notification as will be
satisfactory to the Indenture Trustee and the Issuer will be deemed to
be a sufficient giving of such notice.
(c) No notice will be given by mail, facsimile,
electronic transmission or otherwise delivered to a Holder of Bearer
Notes or coupons in bearer form. In the case of any 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 tranche of Notes, the applicable
Indenture Supplement may specify different or additional means of
giving notice to the Holders of the Notes of such 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. Separability. In case any provision in
this Indenture or in the Notes will be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture. Nothing in this
Indenture or in any Notes, express or implied, will give to any Person,
other than the parties hereto and their successors hereunder, any
Authenticating Agent or Paying Agent, the Note Registrar, Derivative
Counterparties (to the extent specified in the applicable Derivative
Agreement) and the Holders of Notes (or such of them as may be affected
thereby), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law. THIS INDENTURE WILL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK, 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]
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:
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.
(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 an Issuer Request 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 with
respect to such Global Notes, and Holders of Notes evidencing not
less than 50% of the unpaid Outstanding Dollar Principal Amount
of the Global Notes of that tranche advise the Indenture Trustee
and the Depository that a Global Note is no longer in the 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 three paragraphs, the Issuer will execute and the
Indenture Trustee or its agent will authenticate and deliver
individual Notes in definitive registered form in authorized
denominations. Upon the exchange of the entire Stated Principal
Amount of a Global Note for individual Notes, such Global Note
will be canceled by the Indenture Trustee or its agent. Except
as provided in the preceding paragraphs, Notes issued in exchange
for a Global Note pursuant to this Section 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 tranche and substantially in the form set forth in the exhibit
with respect thereto attached to the applicable Indenture Supplement.
The Temporary Global Note will be authenticated by the Indenture
Trustee upon the same conditions, in substantially the same manner and
with the same effect as the Notes in definitive form. The Temporary
Global Note may be exchanged as described below or in the applicable
Indenture Supplement for permanent global Bearer Notes or Registered
Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable Indenture
Supplement, exchanges of beneficial interests in Temporary Global Notes
for beneficial interests in Permanent Global Notes will be made as
provided in this clause. The Beneficiary will, upon its determination
of the date of completion of the distribution of the Notes of such
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 its London
office or its designated agent outside the United States Permanent
Global Notes in bearer or registered form (as specified in the
applicable Indenture Supplement) in an aggregate principal amount equal
to the entire aggregate principal amount of such tranche. Bearer Notes
so issued and delivered may have coupons attached. The Temporary
Global Note may be exchanged for an equal aggregate principal amount of
Permanent Global Notes only on or after the Exchange Date. A United
States Person may exchange the portion of the Temporary Global Note
beneficially owned by it only for an equal aggregate principal amount
of Permanent Global Notes in registered form bearing the applicable
legend set forth in the form of Registered Note attached to the
applicable 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 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 D-1 (or such other form as the Issuer may determine) with
respect to the Temporary Global Note, or portion thereof being
exchanged, signed by a foreign clearing agency and dated on the
Exchange Date or a subsequent date, to the effect that it has received
in writing or by tested telex a certification substantially in the form
of (i) in the case of beneficial ownership of the Temporary Global
Note, or a portion thereof being exchanged, by a United States
institutional investor pursuant to this clause, the certificate in the
form of Exhibit D-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 D-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.
(c) The delivery to the Indenture Trustee by a foreign
clearing agency of any written statement referred to above may be
relied upon by the Issuer and the Indenture Trustee as conclusive
evidence that a corresponding certification or certifications has or
have been delivered to such foreign clearing agency pursuant to the
terms of this Indenture.
(d) Upon any such exchange of all or a portion of the
Temporary Global Note for a Permanent Global Note or Notes, such
Temporary Global Note will be endorsed by or on behalf of the Indenture
Trustee to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of such Permanent Global Note
or Notes. Until so exchanged in full, such Temporary Global Note will
in all respects be entitled to the same benefits under this Indenture
as Permanent Global Notes authenticated and delivered hereunder except
that the beneficial owners of such Temporary Global Note will not be
entitled to receive payments of interests on the Notes until they have
exchanged their beneficial interests in such Temporary Global Note for
Permanent Global Notes.
Section 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 and the clearing agency's participants
for all purposes (including the making of distributions) as the
authorized representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be
exercised only through the applicable clearing agency and the clearing
agency's participants and will be limited to those established by law
and agreements between such Note Owners and the clearing agency and/or
the clearing agency's participants. Pursuant to the operating rules of
the applicable clearing agency, unless and until Notes in definitive
form are issued pursuant to Section 204, the clearing agency will make
book-entry transfers among the clearing agency's participants and
receive and transmit distributions of principal and interest on the
related Notes to such clearing agency's participants.
For purposes of any provision of this Indenture requiring
or permitting actions with the consent of, or at the direction of,
Noteholders evidencing a specified percentage of the aggregate unpaid
principal amount of Outstanding Notes, such direction or consent may be
given by Note Owners (acting through the clearing agency and the
clearing agency's participants) owning interests in Notes evidencing
the requisite percentage of principal amount of Notes.
Section 207. Notices to Depository. Whenever any
notice or other communication is required to be given to Noteholders
with respect to which book-entry Notes have been issued, unless and
until Notes in definitive form will have been issued to the related
Note Owners, the Indenture Trustee will give all such notices and
communications to the applicable Depository.
[END OF ARTICLE II]
ARTICLE III
THE NOTES
Section 301. General Title; General Limitations;
Issuable in Series; Terms of a Series, Class or Tranche.
(a) The aggregate Stated Principal Amount of Notes which
may be authenticated and delivered and Outstanding under this Indenture
is not limited.
(b) The Notes may be issued in one or more series,
classes or tranches up to an aggregate Stated Principal Amount of Notes
as from time to time may be authorized by the Issuer. All Notes of
each series, class or tranche under this Indenture will in all respects
be equally and ratably entitled to the benefits hereof with respect to
such series, class or tranche without preference, priority or
distinction on account of the actual time of the authentication and
delivery or Expected Principal Payment Date or Legal Maturity Date of
the Notes of such series, class or tranche, except as specified in the
applicable Indenture Supplement for such series, class or tranche.
(c) Each Note issued must be part of a series, class and
tranche of Notes for purposes of allocations pursuant to Article V. 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 an Issuer Certificate or terms document, each
related to the Indenture Supplement for the applicable series.
(d) Each series of Notes may be assigned to a group or
groups of Notes for purposes of allocations pursuant to Article V. 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 amounts.
(e) 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.
(f) 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.
(g) Each class of Notes may consist of a single tranche
or may be subdivided into multiple tranches. Notes of a single class
of a series will belong to different tranches if they have different
terms and conditions. With respect to any class of Notes, Notes which
have identical terms, conditions and tranche designation will be deemed
to be part of a single tranche.
(h) There shall also be established in or pursuant to an
Indenture Supplement or pursuant to an Issuer Certificate or terms
document related to the applicable Indenture Supplement before the
initial issuance of Notes of each such series, class or tranche,
provision for:
(i) the series designation;
(ii) the Stated Principal Amount of the Notes;
(iii) whether such series belongs to any group or
groups;
(iv) whether such Notes are of a particular class of
Notes or a tranche of any such class;
(v) the Required Subordinated Amount (if any) for
such class or tranche of Notes;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) the price or prices at which the Notes will be
issued;
(x) the times at which such Notes may, pursuant to
any optional or mandatory redemption provisions, be redeemed, and
the other terms and provisions of any such redemption provisions;
(xi) the rate per annum at which such 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;
(xii) each Interest Payment Date, Expected Principal
Payment Date and Legal Maturity Date for such Notes;
(xiii) the Initial Dollar Principal Amount of
such Notes, and the means for calculating the Outstanding Dollar
Principal Amount of such Notes;
(xiv) whether or not application will be made to list
such Notes on any securities exchange;
(xv) any Events of Default or Early Redemption
Events with respect to such 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 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);
(xvi) 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;
(xvii) if such Notes will be issued in whole or
in part in the form of a Global Note or Global Notes, the terms
and conditions, if any, upon which such Global Note or Global
Notes may be exchanged in whole or in part for other individual
Notes; and the Depository for such Global Note or Global Notes
(if other than the Depository specified in Section 101);
(xviii) the subordination of such Notes to any
other indebtedness of the Issuer, including without limitation,
the Notes of any other series, class or tranche;
(xix) if such Notes are to have the benefit of any
Derivative Agreement, the terms and provisions of such agreement;
(xx) the Record Date for any Payment Date of such
Notes, if different from the last day of the month before the
related Payment Date;
(xxi) the controlled accumulation amount, if any, the
controlled amortization amount, if any, or other principal
amortization amount, if any, scheduled for such Notes; and
(xxii) any other terms of such Notes which will
not be inconsistent with the provisions of this Indenture;
all upon such terms as may be determined in or pursuant to an Indenture
Supplement with respect to such series, class or tranche.
(i) The form of the Notes of each series, class or
tranche will be established pursuant to the provisions of this
Indenture and the related Indenture Supplement 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.
(j) Unless otherwise provided with respect to Notes of a
particular series, class or tranche, the Notes of any particular
series, class or tranche will be issued in registered form, without
coupons.
(k) Any terms or provisions in respect of the Notes of
any series, class or tranche issued under this Indenture may be
determined pursuant to this Section by providing in the applicable
Indenture Supplement for the method by which such terms or provisions
will be determined.
(l) The Notes of each series, class or tranche may have
such Expected Principal Payment Date or Dates or Legal Maturity Date or
Dates, be issuable at such premium over or discount from their face
value, bear interest at such rate or rates (which may be fixed or
floating), from such date or dates, payable in such installments and on
such dates and at such place or places to the Holders of Notes
registered as such on such Record Dates, or may bear no interest, and
have such terms, all as will be provided for in or pursuant to the
applicable Indenture Supplement.
Section 302. Denominations. The Notes of each tranche
will be issuable in such denominations and currency as will be provided
in the provisions of this Indenture or in or pursuant to the applicable
Indenture Supplement. In the absence of any such provisions with
respect to the Registered Notes of any tranche, the Registered Notes of
that tranche will be issued in denominations of $1,000 and multiples
thereof. In the absence of any such provisions with respect to the
Bearer Notes of any tranche, the Bearer Notes of that tranche will be
issued in denominations of 1,000, 5,000, 50,000 and 100,000 units of
the applicable currency.
Section 303. Execution, Authentication and Delivery
and Dating.
(a) The Notes will be executed on behalf of the Issuer by
an Issuer Authorized Officer. The signature of any officer of the
Beneficiary or the Owner Trustee on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signatures of
individuals who were at any time an Issuer Authorized Officer will bind
the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices before the authentication and delivery of
such Notes or did not hold such offices at the date of issuance of such
Notes.
(c) At any time and from time to time after the execution
and delivery of this Indenture, the Issuer may deliver Notes executed
by the Issuer to the Indenture Trustee for authentication; and the
Indenture Trustee will, upon request by an Officer's Certificate,
authenticate and deliver such Notes as in this Indenture provided and
not otherwise.
(d) Before any such authentication and delivery, the
Indenture Trustee will be entitled to receive, in addition to any
Officer's Certificate and Opinion of Counsel required to be furnished
to the Indenture Trustee pursuant to Section 102, the Issuer
Certificate and any other opinion or certificate relating to the
issuance of the tranche of Notes required to be furnished pursuant to
Section 202 or Section 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
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
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 tranche are issued, the
Issuer will cause definitive Notes of such tranche to be prepared
without unreasonable delay. After the preparation of definitive Notes,
the temporary Notes of such tranche will be exchangeable for definitive
Notes of such tranche upon surrender of the temporary Notes of such
tranche at the office or agency of the Issuer in a Place of Payment,
without charge to the Holder; and upon surrender for cancellation of
any one or more temporary Notes the Issuer will execute and the
Indenture Trustee will authenticate and deliver in exchange therefor a
like Stated Principal Amount of definitive Notes of such tranche of
authorized denominations and of like tenor and terms. Until so
exchanged the temporary Notes of such tranche will in all respects be
entitled to the same benefits under this Indenture as definitive Notes
of such tranche.
Section 305. Registration, Transfer and Exchange.
(a) The Issuer will keep or cause to be kept a register
(herein sometimes referred to as the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer will
provide for the registration of Registered Notes, or of Registered
Notes of a particular tranche, and for transfers of Registered Notes or
of Registered Notes of such tranche. Any such register will be in
written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the
information contained in such register or registers will be available
for inspection by the Indenture Trustee at the office or agency to be
maintained by the Issuer as provided in Section 1102.
(b) Subject to Section 204, upon surrender for transfer
of any Registered Note of any tranche at the office or agency of the
Issuer in a Place of Payment, 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 tranche of any authorized denominations,
of a like aggregate Stated Principal Amount, Expected Principal Payment
Date and Legal Maturity Date and of like terms.
(c) Subject to Section 204, at the option of the Holder,
Notes of any tranche may be exchanged for other Notes of such tranche
of any authorized denominations, of a like aggregate Stated Principal
Amount, Expected Principal Payment Date and Legal Maturity Date and of
like terms, upon surrender of the Notes to be exchanged at such office
or agency. Registered Notes, including Registered Notes received in
exchange for Bearer Notes, may not be exchanged for Bearer Notes. At
the option of the Holder of a Bearer Note, subject to applicable laws
and regulations, Bearer Notes may be exchanged for other Bearer Notes
or Registered Notes (of the same class and tranche) of authorized
denominations of like aggregate fractional undivided interests in the
Noteholders' interest, upon surrender of the Bearer Notes to be
exchanged at an office or agency of the Note Registrar located outside
the United States. Each Bearer Note surrendered pursuant to this
Section will have attached thereto all unmatured coupons; provided,
however, that any Bearer Note, so surrendered after the close of
business on the last day of the month preceding the relevant Payment
Date need not have attached the coupon relating to such Payment Date.
Whenever any Notes are so surrendered for exchange, the Issuer will
execute, and the Trustee will authenticate and deliver (in the case of
Bearer Notes, outside the United Sates), the Notes which the
Noteholders making the exchange are entitled to receive.
(d) All Notes issued upon any transfer or exchange of
Notes will be the valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such transfer or exchange.
(e) Every Note presented or surrendered for transfer or
exchange will (if so required by the Issuer or the Indenture Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Issuer and the Note Registrar duly
executed, by the Holder thereof or his attorney duly authorized in
writing.
(f) Unless otherwise provided in the Note to be
transferred or exchanged, no service charge will be made on any
Noteholder for any transfer or exchange of Notes, but the Issuer may
(unless otherwise provided in such Note) require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Notes, other
than exchanges pursuant to Section 304 or 1006 not involving any
transfer.
(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
interests of a Global Note or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
(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 tranche of Notes issued under this Indenture.
(i) Registration of transfer of Notes containing the
following legend or to which the following legend is applicable:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
NOTE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT
IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER
OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE INDENTURE REFERRED TO HEREIN."
will be effected only if such transfer is made pursuant to an effective
registration statement under the Securities Act, or is exempt from the
registration requirements under the Securities Act. In the event that
registration of a transfer is to be made in reliance upon an exemption
from the registration requirements under the Securities Act 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 Trustee and the Note
Registrar receive an Opinion of Counsel, satisfactory to each of them,
to the effect that such legend may be removed.
Whenever a Note containing the legend referred to above is
presented to the Note Registrar for registration of transfer, the Note
Registrar will promptly seek instructions from the Issuer regarding
such transfer and will be entitled to receive an Issuer Certificate
prior to registering any such transfer. The Issuer hereby agrees to
indemnify the Note Registrar and the Indenture Trustee and to hold each
of them harmless against any loss, liability or expense incurred
without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by them in relation to any
such instructions furnished pursuant to this clause.
Section 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 Issuer and 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 and the Indenture Trustee such security or indemnity as may
be required by them to save each of them harmless, then, in the absence
of notice to the Issuer 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.
(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.
(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.
Section 308. Persons Deemed Owners. 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 Section 104(c) as the owner of such Note for the
purpose of receiving payment of principal of and (subject to Section
307) interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither the Issuer, the
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 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) The Issuer may issue new Notes of any series, class
or tranche, so long as the following conditions precedent are
satisfied:
(i) on or before the third Business Day before the
date that the new issuance is to occur, the Issuer gives the
Indenture Trustee and the Note Rating Agencies written notice of
the 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 at the time of its occurrence
or at a future date cause an Adverse Effect on any
Outstanding Notes;
(B) all instruments furnished to the
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;
(D) all laws and requirements with respect to
the execution and delivery by the Issuer of such
Notes have been complied with, the Issuer has the
trust power and authority to issue such Notes and
such Notes have been duly authorized and delivered by
the Issuer and, assuming due authentication and
delivery by the Indenture Trustee, constitute legal,
valid and binding obligations of the Issuer
enforceable in accordance with their terms (subject,
as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or
other laws and legal principles affecting creditors'
rights generally from time to time in effect and to
general equitable principles, whether applied in an
action at law or in equity) and entitled to the
benefits of this Indenture, equally and ratably with
all other Notes, if any, of such series, class or
tranche Outstanding, subject to the terms of this
Indenture and each Indenture Supplement; and
(E) such other matters as the Indenture
Trustee may reasonably request;
(iii) on or before the date that the new issuance is
to occur, the Issuer will have delivered to the Indenture Trustee
and the Note Rating Agencies a Master Trust Tax Opinion and an
Issuer Tax Opinion with respect to such issuance;
(iv) on or before the date that the new issuance is
to occur, the Issuer will have delivered to the Trustee an
Indenture Supplement and, if applicable, the Issuer Certificate
or terms document relating to the applicable series, class and
tranche of Notes;
(v) no Pay Out Event as defined in the Pooling and
Servicing Agreement or Series 2001-D Pay Out Event as defined in
the Series 2001-D Supplement will have occurred and be continuing
as of the date of the new issuance;
(vi) in the case of foreign currency Notes, the
Issuer will have appointed one or more Paying Agents in the
appropriate countries;
(vii) the Note Rating Agencies have provided written
confirmation that such issuance will not have a Ratings Effect;
(viii) the conditions specified herein or in
Section 311 are satisfied; and
(ix) any other conditions specified herein in the
applicable Indenture Supplement;
provided, however, that any one of the aforementioned conditions (other
than clauses (iii) and (iv)) may be eliminated or modified as a
condition precedent to any new issuance of a series, class or tranche
of Notes if the Issuer has obtained written confirmation from each Note
Rating Agency that there will be no Ratings Effect with respect to any
Outstanding Notes as a result of a new issuance of Notes.
(b) The Issuer and the Indenture Trustee will not be
required to obtain the consent of any Noteholder of any Outstanding
series, class or tranche to issue any additional Notes of any series,
class or tranche.
(c) There are no restrictions on the timing or amount of
any additional issuance of Notes of an Outstanding tranche of a
multiple issuance series, so long as the conditions described in
paragraph (a) are met. As of the date of any additional issuance of
Notes of an Outstanding tranche of Notes, the Stated Principal Amount,
Outstanding Dollar Principal Amount and Nominal Liquidation Amount of
that tranche will be increased to reflect the principal amount of the
additional Notes. If the additional Notes are a 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. The
targeted deposits, if any, to the principal funding sub-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 and the related Indenture Supplement 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 Tranche.
(a) The applicable Indenture Supplement for each tranche
of Notes will specify a Required Subordinated Amount of each
subordinated class of Notes, if any.
(b) The Issuer may change the Required Subordinated
Amount for any 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 that
series that the change in the Required Subordinated Amount will not
result in a Ratings Effect with respect to any Outstanding Notes in
that series and (ii) delivered to the Trustee and the Note Rating
Agencies a Master Trust Tax Opinion and an Issuer Tax Opinion.
Section 312. Reallocation Groups. Available Funds and
other specified amounts allocated to each series in a Reallocation
Group shall be reallocated to cover interest and expenses related to
each series in such Reallocation Group as specified in each related
Indenture Supplement. The reallocation provisions of the Indenture
Supplement for each series in the same Reallocation Group are required
to be identical in all material respects.
Section 313. Excess Available Funds Sharing Groups.
The Issuer shall reallocate and redistribute certain excess Available
Funds to cover Series Available Funds Shortfalls incurred by Excess
Available Funds Sharing Series in a particular Excess Available Funds
Sharing Group as specified in the related Indenture Supplements;
provided, however, that the Beneficiary may, at any time, direct the
Indenture Trustee to, and the Indenture Trustee will, discontinue the
sharing of excess Available Funds among series. Following the delivery
by the Beneficiary of such an Officer's Certificate to the Indenture
Trustee there will not be any further sharing of excess Available Funds
among series.
[END OF ARTICLE III]
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 401. Collections. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or
delivery of, and will receive and collect, directly and without
intervention or assistance from any fiscal agent or other intermediary,
all money and other property payable to or receivable by the Indenture
Trustee pursuant to this Indenture including, without limitation, all
funds and other property payable to the Indenture Trustee in connection
with the Collateral (collectively, the "Collections"). The Indenture
Trustee will hold all such money and property received by it as part of
the Collateral and will apply it as provided in this Indenture.
Section 402. Accounts.
(a) Accounts; Deposits to and Distributions from
Accounts. On or before the Effective Date, the Issuer will cause to be
established and maintained one or more Qualified Accounts
(collectively, the "Collection Account") 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,
the Noteholders and any applicable Derivative Counterparty. All
collections received from the Master Trust pursuant to Section 5.01 of
the Pooling and Servicing Agreement as supplemented by the Series
2001-D Supplement shall be deposited into the Collection Account. From
time to time in connection with the issuance of a series, class or
tranche of Notes, the Indenture Trustee may establish one or more
Qualified Accounts denominated as "Supplemental Accounts" in the name
of the Indenture Trustee. The Collection Account shall be under the
sole dominion and control of the Indenture Trustee for the benefit of
the Indenture Trustee, the Noteholders and any applicable Derivative
Counterparty. If, at any time, the institution holding the Collection
Account ceases to be a Qualified Institution, the Issuer will 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 Collection Account that is a Qualified Account
and shall transfer any cash and/or investments to such new Collection
Account. From the date such new Collection Account is established, it
will be the "Collection Account." Supplemental Accounts will be
created as specified in the applicable Indenture Supplement. Any
Supplemental Account will receive deposits as set forth in the
applicable Indenture Supplement.
(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
Accounts pursuant to this Indenture will be made by or on behalf of the
Indenture Trustee to the Paying Agent not later than 12:00 noon on the
applicable Payment Date or earlier, if necessary, or as otherwise
provided in Article V or the applicable Indenture Supplement but only
to the extent of available funds in the applicable Supplemental Account
or sub-Account.
Section 403. Investment of Funds in the Accounts.
(a) Funds on deposit in the Accounts will be invested and
reinvested by the Indenture Trustee at the written direction of the
Issuer in one or more Permitted Investments. 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 Accounts will be invested in Permitted Investments that will
mature in each case no later than the date on which such funds in the
Accounts are scheduled to be transferred or distributed by the
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 Accounts
pursuant to this Indenture and all investments made with such funds
will be held by the Indenture Trustee in the Accounts as part of the
Collateral 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 Accounts will
not be commingled with any other funds or property of the Issuer or the
Indenture Trustee. The Indenture Trustee shall:
(i) hold each Permitted Investment (other than
those described in clause (c) of the definition thereof) that
constitutes investment property through a securities
intermediary, which securities intermediary shall agree with the
Indenture Trustee that (A) such investment property at all times
shall be credited to a securities account of the Indenture
Trustee, (B) all property credited to such securities account
shall be treated as a financial asset, (C) such securities
intermediary shall treat the Indenture Trustee as entitled to
exercise the rights that comprise each financial asset credited
to such securities account, (D) such securities intermediary
shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or
entity, (E) such securities intermediary shall not agree with any
person or entity other than the Indenture Trustee to comply with
entitlement orders originated by any person or entity other than
the Indenture Trustee, (F) such securities account and all
property credited thereto shall not be subject to any lien,
security interest, right of set-off, or encumbrance in favor of
such securities intermediary or anyone claiming through such
securities intermediary (other than the Indenture Trustee), and
(G) such agreement between such securities intermediary and the
Indenture Trustee shall be governed by the laws of the State of
New York;
(ii) maintain possession of each other Permitted
Investment not described in clause (i) above (other than those
described in clause (c) of the definition thereof) in the State
of New York separate and apart from all other property held by
the Indenture Trustee; and
(iii) cause each Permitted Investment described in
clause (c) of the definition thereof to be registered in the name
of the Indenture Trustee by the issuer thereof;
provided, that, other than following an Event of Default and
acceleration pursuant to Section 702, no Permitted Investment
shall be disposed of prior to its maturity.
Notwithstanding any other provision of this Indenture, the Indenture
Trustee shall not hold any Permitted Investment through an agent except
as expressly permitted by this Section 403(c). Each term used in this
Section 403(c) and defined in the New York UCC shall have the meaning
set forth in the New York UCC.
(d) On each Transfer Date, all interest and earnings (net
of losses and investment expenses) accrued since the preceding Transfer
Date on funds on deposit in the Collection Account will be treated as
Available Funds and applied pursuant to Section 501 for such Transfer
Date. Unless otherwise stated in the related Indenture Supplement, for
purposes of determining the availability of funds or the balance in the
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 Section 801(c), the Indenture Trustee will not
in any way be held liable by reason of any insufficiency in such
Accounts resulting from any loss on any Permitted Investment included
therein except for losses attributable to the Indenture Trustee's
failure to make payments on such Permitted Investments issued by the
Indenture Trustee, in its commercial capacity, in accordance with their
terms.
(e) Funds on deposit in the 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 Permitted 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 702.
[END OF ARTICLE IV]
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 501. Allocations of Available Funds. With
respect to each Monthly Period, the Indenture Trustee will allocate to
each series of Notes its portion of Available Funds in an amount equal
to the sum of (i) the sum of the Daily Available Funds Amounts for each
day during such Monthly Period for such series of Notes, (ii) such
series' pro rata portion of Finance Charge Account Investment Proceeds
allocated to Series 2001-D pursuant to Section 5(b) of the Series 2001-
D Supplement with respect to the related Transfer Date based on the
aggregate amount on deposit in the Finance Charge Account with respect
to such series of Notes to the aggregate amount on deposit in the
Finance Charge Account with respect to all series of Notes and
(iii) such series' pro rata portion of Principal Account Investment
Proceeds allocated to Series 2001-D pursuant to Section 5(b) of the
Series 2001-D Supplement with respect to the related Transfer Date
based on the aggregate amount on deposit in the Principal Account with
respect to such series of Notes to the aggregate amount on deposit in
the Principal Account with respect to all series of Notes for
application in accordance with the related Indenture Supplement.
Section 502. Allocations of Available Principal
Amounts. With respect to each Monthly Period, the Indenture Trustee
will allocate all Available Principal Amounts to each series of Notes
with a Monthly Principal Payment for such Monthly Period in an amount
equal to its Monthly Principal Payment; provided, however, that in the
event that Available Principal Amounts for any Monthly Period are less
than the aggregate Monthly Principal Payments for all series of Notes,
Available Principal Amounts will be allocated to each series of Notes
with a Monthly Principal Payment for such Monthly Period in an amount
equal to the lesser of (a) the sum of the Daily Principal Amounts for
each day during such Monthly Period for such series of Notes and
(b) the Monthly Principal Payment for such series of Notes for such
Monthly Period for application in accordance with the related Indenture
Supplement; provided further, however, that any excess Available
Principal Amounts identified in the application of clause (a) of the
preceding proviso, or in the application of this proviso, will be
allocated to each series of Notes which has not been allocated
sufficient Available Principal Amounts to cover its full Monthly
Principal Payment up to the amount of such insufficiency pro rata
(based on the ratio of the Weighted Average Principal Allocation Amount
for such series of Notes for such Monthly Period to the Weighted
Average Principal Allocation Amount for all series of Notes with an
unpaid Monthly Principal Payment for such Monthly Period) for
application in accordance with the related Indenture Supplement.
Section 503. Final Payment. Each tranche of Notes
will be considered to be paid in full, the Holders of such tranche of
Notes will have no further right or claim, and the Issuer will have no
further obligation or liability with respect to such tranche of Notes,
on the earliest to occur of:
(a) the date of the payment in full of the Stated
Principal Amount of and all accrued interest on that tranche of Notes;
(b) the date on which the Outstanding Dollar Principal
Amount of such Notes, after giving effect to all deposits, allocations,
reallocations, sales of Receivables and payments to be made on such
date, is reduced to zero, and all accrued interest on such Notes is
paid in full; or
(c) on the Legal Maturity Date of such Notes, after
giving effect to all deposits, allocations, reallocations, sales of
Receivables and payments to be made on such date.
Section 504. Payments within a Series, Class or
Tranche. All payments of principal, interest or other amounts to
Holders of the Notes of a series, class or tranche will be made in
accordance with the related Indenture Supplement.
Section 505. Allocations of Collections of Finance
Charge Receivables Allocable to the Segregated Seller Interest. With
respect to each Monthly Period, the Indenture Trustee will allocate to
each series of Notes for application in accordance with the related
Indenture Supplement, the aggregate amount paid to the Issuer with
respect to each such series of Notes pursuant to Section 4.09 of the
Series 2001-D Supplement.
[END OF ARTICLE V]
ARTICLE VI
SATISFACTION AND DISCHARGE; CANCELLATION OF NOTES
HELD BY THE ISSUER OR MBNA
Section 601. Satisfaction and Discharge of Indenture.
This Indenture will cease to be of further effect with respect to any
series, class or tranche of Notes (except as to any surviving rights of
transfer or exchange of Notes of that series, class or tranche
expressly provided for herein or in the form of Note for that series,
class or tranche), and the 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 1103) 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 807) 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 under Section 807 and the obligations of the Indenture
Trustee under Sections 602 and 1103 will survive such satisfaction and
discharge.
Section 602. Application of Trust Money. All money
and obligations deposited with the Indenture Trustee pursuant to
Section 601 or Section 603 and all money received by the Indenture
Trustee in respect of such obligations will be held in trust and
applied by it, in accordance with the provisions of the series, class
or tranche of Notes in respect of which it was deposited and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Indenture
Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment that money and obligations
have been deposited with or received by the Indenture Trustee; but that
money and obligations need not be segregated from other funds held by
the Indenture Trustee except to the extent required by law.
Section 603. Cancellation of Notes Held by the Issuer
or MBNA. If the Issuer, MBNA or any of their Affiliates holds any
Notes, that Holder may, subject to any provisions of a related
Indenture Supplement limiting the repayment of subordinated classes of
Notes, by notice from that Holder to the Indenture Trustee cause that
Note to be canceled, whereupon (a) the Note will no longer be
Outstanding, and (b) the Issuer will cause the Investor Interest of the
Collateral Certificate to be reduced by an amount equal to the Nominal
Liquidation Amount of that cancelled Note.
[END OF ARTICLE VI]
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 701. Events of Default. "Event of Default,"
wherever used herein, means with respect to any series, class or
tranche of Notes any one of the following events (whatever the reason
for such Event of Default and whether it will be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless such event is
either 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 any tranche of Notes, 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 any tranche of Notes, a default by
the Issuer in the payment of the principal amount of such 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% in Outstanding
Dollar Principal Amount of the Outstanding Notes of such series, class
or tranche, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder 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) the entry of an order for relief against the Issuer
under the Federal Bankruptcy Code by a court having jurisdiction in the
premises or a decree or order by a court having jurisdiction in the
premises adjudging the Issuer a bankrupt or insolvent under any other
applicable Federal or State law, or the entry of a decree or order
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer
under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of ninety (90) consecutive
days;
(e) the consent by the Issuer to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of
a petition or answer or consent seeking reorganization or relief under
the Federal Bankruptcy Code or any other applicable Federal or State
law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Issuer or of any substantial part of
its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Issuer in furtherance of any such action; or
(f) with respect to any series, class or tranche, any
additional Event of Default specified in the Indenture Supplement for
such series, class or tranche as applying to such series, class or
tranche, or specified in the form of Note for such series, class or
tranche.
Section 702. Acceleration of Maturity; Rescission and
Annulment.
(a) If an Event of Default described in clause (a), (b),
(c) or (f) (if the Event of Default under clause (c) or (f) is with
respect to less than all series, classes and tranches of Notes then
Outstanding) of Section 701 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 Holders), may declare the Outstanding
principal amount of all the Notes of such series, class or tranche then
Outstanding and all interest accrued or principal accreted and unpaid
(if any) thereon to be due and payable immediately, and upon any such
declaration the same will become and will be immediately due and
payable, anything in this Indenture, the related Indenture Supplement
or in the Notes of such series, class or tranche to the contrary
notwithstanding. Such payments are subject to Article V and the
allocation, deposits and payment sections of the related Indenture
Supplement.
(b) If an Event of Default described in clause (c) or (f)
(if the Event of Default under clause (c) or (f) is with respect to all
series, classes and tranches of Notes then Outstanding) of Section 701
occurs 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 Notes then Outstanding 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 principal amount of all the Notes
then Outstanding and all interest accrued or principal accreted and
unpaid (if any) thereon to be due and payable immediately, and upon any
such declaration the same will become and will be immediately due and
payable, notwithstanding anything in this Indenture, the related
Indenture Supplements or the Notes to the contrary.
(c) If an Event of Default described in clause (d) or (e)
of Section 701 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 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 in this Article VII 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:
(a) 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 the Indenture Trustee under Section
807; and
(b) all Events of Default with respect to such series,
class or tranche of Notes, other than the nonpayment of the
principal of the Notes of such series, class or tranche which has
become due solely by such acceleration, have been cured or waived
as provided in Section 716.
No such rescission will affect any subsequent default or
impair any right consequent thereon.
Section 703. Collection of Indebtedness and Suits for
Enforcement by 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 at the Legal Maturity Date
thereof;
and any such default continues beyond any specified grace period
provided with respect to such series, class or tranche of Notes, the
Issuer will, upon demand of the Indenture Trustee, pay (subject to the
allocation provided in Article V, this Article VII 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 the Indenture Trustee under Section
807.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Indenture Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the Issuer
or any other obligor upon the Notes of such series, class or tranche
and collect the money adjudged or decreed to be payable in the manner
provided by law out of the Collateral or any other obligor upon such
Notes, wherever situated.
Section 704. Indenture Trustee May File Proofs of
Claim. In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Issuer or any
other obligor upon the Notes or the property of the Issuer or of such
other obligor or their creditors, the Indenture Trustee (irrespective
of whether the principal of the Notes will then be due and payable as
therein expressed or by declaration or otherwise and irrespective of
whether the Indenture Trustee will have made any demand on the Issuer
for the payment of overdue principal or interest) will be entitled and
empowered, by intervention in such proceedings or otherwise,
(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 807) and of the
Noteholders allowed in such judicial proceeding, and
(ii) to collect and receive any funds or other
property payable or deliverable on any such claims and to
distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized
by each Noteholder to make such payment to the 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
807.
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 or 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 705. 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 Trustee, its agent and
counsel, be for the ratable benefit of the Holders of the Notes of the
series, class or tranche in respect of which such judgment has been
recovered.
Section 706. Application of Money Collected. Any
money or other property collected by the Indenture Trustee with respect
to a series, class or tranche of Notes pursuant to this Article VII
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 807(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 Article V of this
Indenture and the related Indenture Supplements), according to the
amounts due and payable on such Notes for principal and interest,
respectively; and
(c) third, to the Issuer.
Section 707. 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 the Collateral Certificate and apply distributions on the
Collateral Certificate in accordance with the regular distribution
provisions pursuant to Article V of this Indenture, except that
principal will be paid on the accelerated tranche of Notes to the
extent funds are received from the Master Trust and allocated to the
accelerated tranche, and payment is permitted by the subordination
provisions of the accelerated tranche.
Section 708. Sale of Receivables for Accelerated
Notes. In the case of a 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 Master Trust to sell Principal
Receivables and the related Finance Charge Receivables (or interests
therein) as provided in the related Indenture Supplement.
Section 709. 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.
Section 710. Limitation on Suits. No Holder of any
Note of any series, class or tranche will have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Indenture Trustee of a continuing Event of Default with respect to
Notes of such series, class or tranche;
(b) the Holders of not less than 25% in Outstanding
Dollar Principal Amount of the Outstanding Notes of such series, class
or tranche have made written request to the Indenture Trustee to
institute proceedings in respect of such Event of Default in its own
name as 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;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Indenture Trustee during such sixty (60) day
period by the Majority Holders of such series, class or tranche;
it being understood and intended that no one or more Holders of Notes
of such series, class or tranche will have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes of such series, class or tranche, or to obtain or to
seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal and proportionate benefit of all the Holders
of all Notes of such series, class or tranche.
Section 711. Unconditional Right of Noteholders to
Receive Principal and Interest; Limited Recourse. Notwithstanding any
other provisions in this Indenture, the Holder of any Note will have
the right, which is absolute and unconditional, to receive payment of
the principal of and interest on such Note on the 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
MBNA, 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 Article V and the
allocation and payment provisions of the Indenture Supplements.
Section 712. 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 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 713. 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 714. 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 715. Control by Noteholders. The Majority
Holders of any series, class or tranche will have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the 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 will, by an Indenture Trustee Authorized Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in
such direction, and
(b) the Indenture Trustee may take any other action
permitted hereunder deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
Section 716. Waiver of Past Defaults. The Majority
Holders of any series, class or tranche may on behalf of the Holders of
all the Notes of such series, class or tranche waive any past default
hereunder or under the related Indenture Supplement with respect to
such series, class or tranche and its consequences, except a default
not theretofore cured:
(a) in the payment of the principal of or interest on any
Note of such series, class or tranche, or
(b) in respect of a covenant or provision hereof which
under Article X cannot be modified or amended without the consent of
the Holder of each Outstanding Note of such series, class or tranche.
Upon any such waiver, such default will cease to exist, and
any Event of Default arising therefrom will be deemed to have been
cured, for every purpose of this Indenture; but no such waiver will
extend to any subsequent or other default or impair any right
consequent thereon.
Section 717. Undertaking for Costs. All parties to
this Indenture agree, and each Holder of any Note by his acceptance
thereof will be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the 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 718. Waiver of Stay or Extension Laws. The
Issuer covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the
Issuer (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
[END OF ARTICLE VII]
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 801. 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, classes or tranche,
and no implied covenants or obligations will be read into this
Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the
Indenture Trustee may, with respect to Notes of any series, class or
tranche, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Indenture Trustee, the Indenture
Trustee will be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture but need not
confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein.
(c) In case an Event of Default with respect to any
series, class or tranche of Notes has occurred and is continuing, the
Indenture Trustee will exercise with respect to the Notes of such
series, class or tranche such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a fiduciary would exercise or use under the circumstances
in the conduct of such person's own affairs.
(d) No provision of this Indenture will be construed to
relieve the Indenture Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this clause (d) will not be construed to limit
the effect of subsection (a) of this Section;
(ii) the Indenture Trustee will not be liable for
any error of judgment made in good faith by an Indenture Trustee
Authorized Officer, unless it will be proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the 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 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 802. 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 the board of directors, the executive
committee or a trust committee of directors and/or Indenture Trustee
Authorized Officers of the Indenture Trustee in good faith determine
that the withholding of such notice is in the interests of the
Noteholders of such series, class or tranche. For the purpose of this
Section, the term "default," with respect to Notes of any series, class
or tranche, means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Notes of such
series, class or tranche.
Section 803. Certain Rights of Indenture Trustee.
Except as otherwise provided in Section 801:
(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) any request or direction of the Issuer mentioned
herein will be sufficiently evidenced by an Officer's Certificate;
(c) 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;
(d) the Indenture Trustee may consult with counsel of its
own selection and the advice of such counsel or any Opinion of Counsel
will be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(e) 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;
(f) 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;
(g) the Indenture Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Indenture Trustee will not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder; and
(h) the Indenture Trustee will not be responsible for
filing any financing statements or continuation statements in
connection with the Notes, but will cooperate with the Issuer in
connection with the filing of such financing statements or continuation
statements.
Section 804. Not Responsible for Recitals or Issuance
of Notes. The recitals contained herein and in the Notes, except the
certificates of authentication, will be taken as the statements of the
Issuer, and the 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 805. 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 808 and 813, may otherwise
deal with the Issuer with the same rights it would have if it were not
Indenture Trustee, Paying Agent, Note Registrar or such other agent.
Section 806. Money Held in Trust. Money held by the
Indenture Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Indenture Trustee will
be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Issuer.
Section 807. 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 for all services rendered by it
hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(ii) except as otherwise expressly provided herein,
to reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Indenture Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(iii) to indemnify the Indenture Trustee for, and to
hold it harmless against, any and all loss, liability or expense
incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself
against any claim or liability (whether asserted by the Issuer,
the Servicer, any Holder or any other Person) in connection with
the exercise or performance of any of its powers or duties
hereunder.
The Indenture Trustee will have no recourse to any asset of the Issuer
other than funds available pursuant to Section 706 or to any Person
other than the Servicer or the Issuer.
(b) This Section will survive the termination of this
Indenture and the resignation or replacement of the Indenture Trustee
under Section 810.
Section 808. Disqualification; Conflicting Interests.
If the Indenture Trustee has or will acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Indenture Trustee
will, if so required by the Trust Indenture Act, either eliminate such
interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this
Indenture. Nothing herein will prevent the Indenture Trustee from
filing with the Commission the application referred to in the second to
last paragraph of Section 310(b) of the Trust Indenture Act.
Section 809. 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 a
corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by
Federal or State authority, and having a rating of at least BBB- by
Standard & Poor's. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation will
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The Issuer may not, nor
may any Person directly or indirectly controlling, controlled by, or
under common control with the Issuer, serve as Indenture Trustee. If
at any time the Indenture Trustee with respect to any series, class or
tranche of Notes will cease to be eligible in accordance with the
provisions of this Section, it will resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 810. 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 811.
(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 Act of the
Majority Holders of that series, class or tranche, delivered to the
Indenture Trustee and to the Issuer.
(d) If at any time:
(i) the Indenture Trustee fails to comply with
Section 310(b) of the Trust Indenture Act with respect to any
series, class or tranche of Notes after written request therefor
by the Issuer or by any Noteholder who has been a bona fide
Holder of a Note of that series, class or tranche for at least
six (6) months, or
(ii) the Indenture Trustee ceases to be eligible
under Section 809 with respect to any series, class or tranche of
Notes and fails to resign after written request therefor by the
Issuer or by any such Noteholder, or
(iii) the 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 717, 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.
If no successor Indenture Trustee with respect to such series, class or
tranche 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.
(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 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.
Each notice will include the name of the successor Indenture Trustee
and the address of its principal Corporate Trust Office.
Section 811. Acceptance of Appointment by Successor.
Every successor Indenture Trustee appointed hereunder will execute,
acknowledge and deliver to the Issuer and to the predecessor Indenture
Trustee an instrument accepting such appointment, with a copy to the
Note Rating Agencies, and thereupon the resignation or removal of the
predecessor Indenture Trustee will become effective with respect to any
series, class or tranche as to which it is resigning or being removed
as Indenture Trustee, and such successor Indenture Trustee, without any
further act, deed or conveyance, will become vested with all the
rights, powers, trusts and duties of the predecessor Indenture Trustee
with respect to any such series, class or tranche; but, on request of
the Issuer or the successor Indenture Trustee, such predecessor
Indenture Trustee will, upon payment of its reasonable charges, if any,
execute and deliver an instrument transferring to such successor
Indenture Trustee all the rights, powers and trusts of the predecessor
Indenture Trustee, and will duly assign, transfer and deliver to such
successor Indenture Trustee all property and money held by such
predecessor Indenture Trustee hereunder with respect to all or any such
series, class or tranche, subject nevertheless to its lien, if any,
provided for in Section 807. 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 with respect to that series, class or tranche
under this Article.
Section 812. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the 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 Issuer will give prompt written notice of
such merger, conversion, consolidation or succession to the Note Rating
Agencies. In case any Notes shall have been authenticated, but not
delivered, by the Indenture Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Indenture
Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Indenture
Trustee had itself authenticated such Notes.
Section 813. 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 814. 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 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 807.
If an appointment with respect to one or more series,
classes or tranches is made pursuant to this Section, the Notes of such
series, classes or 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 815. Tax Returns. In the event the Issuer
shall be required to file tax returns, the Servicer shall prepare or
shall cause to be prepared such tax returns and shall provide such tax
returns to the Owner Trustee or the Beneficiary for signature at least
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 Servicer with all such
information known to the Indenture Trustee as may be reasonably
requested and required in connection with the preparation of all tax
returns of the Issuer, and shall, upon request, execute such returns.
In no event shall the Indenture Trustee or the Owner Trustee be
personally liable for any liabilities, costs or expenses of the Issuer
or any Noteholder arising under any tax law, including without
limitation, federal, state or local income or excise taxes or any other
tax imposed on or measured by income (or any interest or penalty with
respect thereto arising from a failure to comply therewith).
Section 816. 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 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 817. Custody of the Collateral. The
Collateral Certificate shall be registered in the name of the Indenture
Trustee and shall be delivered to and held by the Indenture Trustee in
the State of New York separate and apart from all other property held
by the Indenture Trustee. The Indenture Trustee shall hold such of the
Collateral as constitutes a Permitted Investment in accordance with
Section 403(c). All other Collateral that is not described in the
preceding two sentences (i) that constitutes investment property shall
be held by the Indenture Trustee through a securities intermediary,
which securities intermediary shall agree with the Indenture Trustee
that (A) such investment property at all times shall be credited to a
securities account of the Indenture Trustee, (B) all property credited
to such securities account shall be treated as a financial asset,
(C) such securities intermediary shall treat the Indenture Trustee as
entitled to exercise the rights that comprise each financial asset
credited to such securities account, (D) such securities intermediary
shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity,
(E) such securities intermediary shall not agree with any person or
entity other than the Indenture Trustee to comply with entitlement
orders originated by any person or entity other than the Indenture
Trustee, (F) such securities account and all property credited thereto
shall not be subject to any lien, security interest, right of set-off,
or encumbrance in favor of such securities intermediary or anyone
claiming through such securities intermediary (other than the Indenture
Trustee), and (G) such agreement between such securities intermediary
and the Indenture Trustee shall be governed by the laws of the State of
New York; and (ii) not described in clause (i) above shall be held by
the Indenture Trustee in the State of New York separate and apart from
all other property held by the Indenture Trustee. Notwithstanding any
other provision of this Indenture, the Indenture Trustee shall not hold
any Collateral through an agent except as expressly permitted by this
Section 817 and Section 403(c). Each term used in this Section 817 and
defined in the New York UCC shall have the meaning set forth in the New
York UCC.
Section 818. 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 818. 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 any
officer of the Issuer actually receives such application, unless any
such officer shall have consented in writing to any earlier date)
unless prior to taking any such action (or the effective date in the
case of an omission), the Indenture Trustee shall have received written
instructions in response to such application specifying the action be
taken or omitted.
[END OF ARTICLE VIII]
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS, REPORTS BY INDENTURE TRUSTEE,
ISSUER AND BENEFICIARY
Section 901. 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 902. 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 901 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 901 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") 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 Section 902(a), or
(ii) inform such applicants as to the approximate
number of Holders of Notes of such series, class or tranche or
all Notes, as the case may be, whose names and addresses appear
in the information preserved at the time by the Indenture Trustee
in accordance with Section 902(a), and as to the approximate cost
of mailing to such Noteholders the form of proxy or other
communication, if any, specified in such application.
If the 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 Section 902(a), a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the 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 Section 902(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 Section 902(b).
Section 903. Reports by Indenture Trustee.
(a) The term "reporting date" as used in this Section
means August 31. Within sixty (60) days after the reporting date in
each year, beginning in 2002, the Indenture Trustee will transmit to
Noteholders, in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act, a brief report dated as of such reporting
date if required by Section 313(a) of the Trust Indenture Act.
(b) To the extent required by the Trust Indenture Act,
the Indenture Trustee will mail each year to all Registered
Noteholders, with a copy to the Note Rating Agencies a report
concerning:
(i) its eligibility and qualifications to continue
as trustee under this Indenture;
(ii) any amounts advanced by the Indenture Trustee
under this Indenture;
(iii) the amount, interest rate and maturity date or
indebtedness owing by the Issuer to the Indenture Trustee in the
Indenture Trustee's individual capacity;
(iv) the property and funds physically held by the
Indenture Trustee as Indenture Trustee;
(v) any release or release and substitution of
Collateral subject to the lien of this Indenture which has not
previously been reported; and
(vi) any action taken by the Indenture Trustee that
materially affects the Notes and that has not previously been
reported.
(c) The Indenture Trustee will comply with Sections
313(b) and 313(c) of the Trust Indenture Act.
(d) A copy of each such report will, at the time of such
transmission to Noteholders, be filed by the 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 904. Meetings of Noteholders; Amendments and
Waivers.
(a) The Indenture Trustee may call a meeting of the
Noteholders of a series, class or tranche at any time. 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. In any case, a
meeting will be called after notice is given to the Noteholders
pursuant to Section 106.
(b) Except for any consent that must be given by the
Holders of each Outstanding Note affected or any action to be taken by
the Issuer as holder of the Collateral Certificate, any resolution
presented at any meeting at which a quorum is present may be adopted by
the affirmative vote of the Majority Holders of that series, class or
tranche, as the case may be. For any vote, request, demand,
authorization, direction, notice, consent, waiver or other action
provided by the Series 2001-D Supplement to be given or taken by the
holder of the Collateral Certificate, any resolution presented at any
meeting at which the Majority Holders of all Outstanding Notes is
present may be adopted by the affirmative vote of the Majority Holders
of all Outstanding Notes. However, any resolution with respect to any
consent, waiver, request, demand, notice, authorization, direction or
other action which may be given by the Holders of not less than a
specified percentage in aggregate Outstanding Dollar Principal Amount
of Outstanding Notes of a series, class or tranche or all Notes may be
adopted at any meeting at which a quorum is present only by the
affirmative vote of the Holders of not less than the specified
percentage in aggregate Outstanding Dollar Principal Amount of the
Outstanding Notes of that series, class or tranche or all Outstanding
Notes, as the case may be. Any resolution passed or decision taken at
any meeting of Noteholders duly held in accordance with this Indenture
will be binding on all Noteholders of the affected series, class or
tranche.
(c) The quorum at any meeting will be persons holding or
representing the Majority Holders of a series, class or tranche or all
Notes, as the case may be; provided, however, that if any action is to
be taken at that meeting concerning a consent, waiver, request, demand,
notice, authorization, direction or other action that may be given by
the Holders of not less than a specified percentage in aggregate
Outstanding Dollar Principal Amount of the Outstanding Notes of a
series, class or tranche or all Notes, as applicable, the persons
holding or representing such specified percentage in aggregate
Outstanding Dollar Principal Amount of the Outstanding Notes of such
series, class or tranche or all Notes will constitute a quorum.
(d) The ownership of Registered Notes will be proved by
the Note Register. The Ownership of Bearer Notes will be proved as
provided in Section 104(c)(ii).
(e) The Issuer may make reasonable rules for other
matters relating to action by or a meeting of Noteholders not otherwise
covered by this Section.
Section 905. Reports by Issuer to the Commission. The
Issuer will:
(a) file with the 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.
Section 906. Reports by Indenture Trustee. The
Indenture Trustee will report to the Issuer with respect to the amount
on deposit in the Accounts, and the identity of the investments
included therein, as the Issuer may from time to time reasonably
request which, absent the occurrence of an Event of Default hereunder,
will not occur more often than monthly.
Section 907. Monthly Noteholders' Statement. On each
Transfer Date the Issuer will, in cooperation with the Servicer of the
Master Trust, complete and deliver to the Indenture Trustee and the
Master Trust Trustee (with a copy to each Note Rating Agency) a Monthly
Noteholders' Statement.
Section 908. Payment Instruction to Master Trust.
(a) Promptly after the receipt by the Issuer of each
Monthly Servicer's Certificate under the Series 2001-D Supplement, the
Issuer will, in cooperation with the Servicer of the Master Trust,
complete the Payment Instruction and deliver a copy thereof to the
Indenture Trustee and the Master Trust Trustee.
(b) From time to time, the Issuer will notify the
Servicer under the Series 2001-D Supplement of the information
necessary to be provided by the Issuer under Section 5.01 of the
Pooling and Servicing Agreement as supplemented by the Series 2001-D
Supplement to calculate the Investor Interest and the Principal
Allocation Investor Interest of the Collateral Certificate.
[END OF ARTICLE IX]
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO THE POOLING AND
SERVICING AGREEMENT AND AMENDMENTS TO THE TRUST AGREEMENT
Section 1001. Supplemental Indentures Without Consent
of Noteholders. Without the consent of the Holders of any Notes 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 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, may amend this Indenture or
any Indenture Supplement or enter into one or more 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 811; or
(g) to add any additional Early Redemption Events or
Events of Default in respect of the Notes of any or all series, classes
or tranches (and if such additional Events of Default are to be in
respect of less than all series, classes or tranches of Notes, stating
that such Events of Default are expressly being included solely for the
benefit of one or more specified series, classes or tranches); or
(h) to provide for the consolidation of the Master Trust
and the Issuer into a single Entity or the transfer of assets in the
Master Trust to the Issuer after the termination of all series of
Investor Certificates (other than the Collateral Certificate); or
(i) if one or more additional Sellers under the Pooling
and Servicing Agreement are added to, or replaced under, the 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 provide for the inclusion in the Owner Trust of
additional collateral (in addition to the Collateral Certificate) and
the issuance of Notes backed by any such additional collateral;
(k) to provide for additional or alternative credit
enhancement for any tranche of Notes; or
(l) to qualify for sale treatment under generally
accepted accounting principles.
Additionally, notwithstanding any provision of this
Article X to the contrary, this Indenture or any Indenture Supplement
may be amended without the consent of the Indenture Trustee or any of
the Noteholders, upon delivery of a Master Trust Tax Opinion and an
Issuer Tax Opinion for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this
Indenture or any Indenture Supplement or of modifying in any manner the
rights of the Holders of the Notes under this Indenture or any
Indenture Supplement; 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) the Note Rating Agencies have provided written confirmation that
such amendment will not have a Ratings Effect.
Section 1002. DO NOT DELETE THIS
Section 1002. Supplemental Indentures with Consent of
Noteholders. With prior notice to each applicable Note Rating Agency
and the consent of not less than 66?% in Outstanding Dollar Principal
Amount of each class or tranche affected by such amendment of this
Indenture or any Indenture Supplement by Act of said Holders delivered
to the Issuer and the Indenture Trustee, the Issuer and the Indenture
Trustee, upon delivery of a Master Trust Tax Opinion and an Issuer Tax
Opinion, may enter into an amendment of this Indenture or such
Indenture Supplement for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this
Indenture or any Indenture Supplement 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 or 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 maturity;
(d) impair the right to institute suit for the
enforcement of any payment on any Note;
(e) reduce the percentage in Outstanding Dollar Principal
Amount of the Outstanding Notes of any series, class or tranche, the
consent of whose Holders is required for any such Indenture Supplement,
or the consent of whose Holders is required for any waiver of
compliance with the provisions of this Indenture or of defaults
hereunder and their consequences, provided for in this Indenture;
(f) modify any of the provisions of this Section or
Section 718, 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 that secures any tranche of Notes that is prior to
the lien in favor of the Holders of the Notes of such tranche;
(h) change any Place of Payment where any principal of,
or interest on, any Note is payable, unless otherwise provided in the
applicable Indenture Supplement;
(i) change the method of computing the amount of
principal of, or interest on, any Note on any date; or
(j) make any other amendment not permitted by Section
1001.
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 1003. DO NOT DELETE THIS
Section 1003. Execution of Indenture Supplements. In
executing or accepting the additional trusts created by any amendment
of this Indenture or Indenture Supplement permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the
Indenture Trustee will be entitled to receive, and (subject to Section
801) will be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such amendment or 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 Section 1001(d) or 1001(f)) be
obligated to, enter into any such Indenture Supplement which affects
the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 1004. DO NOT DELETE
Section 1004. Effect of Indenture Supplements. Upon
the execution of any amendment of this Indenture or Indenture
Supplement under this Article, this Indenture will be modified in
accordance therewith with respect to each series, class or tranche of
Notes affected thereby, or all Notes, as the case may be, and such
amendment or Indenture Supplement will form a part of this Indenture
for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder will be bound thereby to the
extent provided therein.
Section 1005. DO NOT DELETE
Section 1005. Conformity with Trust Indenture Act.
Every amendment of this Indenture or Indenture Supplement executed
pursuant to this Article will conform to the requirements of the Trust
Indenture Act as then in effect.
Section 1006. DO NOT DELETE
Section 1006. Reference in Notes to Indenture
Supplements. Notes authenticated and delivered after the execution of
any amendment of this Indenture or Indenture Supplement pursuant to
this Article may, and will if required by the Indenture Trustee, bear a
notation in form approved by the Indenture Trustee as to any matter
provided for in such amendment or Indenture Supplement. If the Issuer
will so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such amendment or
Indenture Supplement may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
Section 1007. DO NOT DELETE
Section 1007. Amendments to the Pooling and Servicing
Agreement. By their acceptance of a Note, the Noteholders acknowledge
that the Seller and the Master Trust Trustee may amend the Pooling and
Servicing Agreement and any supplement thereto without the consent of
the Holders of any Investor Certificates (including the Issuer) or any
Noteholder, so long as such amendment or supplement would not
materially adversely affect the interest of the Holders of any Investor
Certificates.
For purposes of any vote or consent under the Pooling and
Servicing Agreement or any supplement thereto:
(i) that requires the consent or vote of each
Investor Certificateholder, each Noteholder will be treated as an
Investor Certificateholder under the Pooling and Servicing
Agreement and any related supplement thereto;
(ii) that requires the consent or vote of any series
of Investor Certificates, each series of Notes will be treated as
a series of Investor Certificates under the Pooling and Servicing
Agreement and any related supplement thereto; and
(iii) that requires the consent or vote of any class
of Investor Certificates, each tranche of Notes will be treated
as a class of Investor Certificates under the Pooling and
Servicing Agreement and any related supplement thereto.
By their acceptance of a Note, each Noteholder will be
deemed to have consented to any amendment to the Pooling and Servicing
Agreement, the Series 2001-D Supplement, the Trust Agreement and any
other document or agreement relating to any of the foregoing for the
purpose of providing for the transfer of Receivables from MBNA (or any
additional seller under the Pooling and Servicing Agreement) to a
bankruptcy remote special purpose entity and from such entity to the
Master Trust and the substitution of a bankruptcy remote special
purpose entity as the beneficiary of the Issuer.
Section 1008. DO NOT DELETE
Section 1008. 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 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 not less than 66?% in Outstanding Dollar Principal
Amount of the Outstanding Notes affected by such amendment, by Act of
said Holders delivered to the Master Trust Trustee, MBNA 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.
Section 1009. DO NOT DELETE
Section 1009. Notice. If the Issuer, as holder of the
Collateral Certificate for the benefit of the Noteholders, receives a
request for a consent to any amendment, modification, waiver or
supplement under this Indenture, the Pooling and Servicing Agreement,
the Trust Agreement or other document contemplated herein, the Issuer
will forthwith provide notice of such proposed amendment, modification,
waiver or supplement, as provided in Section 106, to each Noteholder as
of such date that is entitled to vote on a consent to such matter and
to each Note Rating Agency. The Issuer will request from such
Noteholders directions as to (i) whether or not the Issuer should take
or refrain from taking any action which the holder of the Collateral
Certificate has the option to direct, (ii) whether or not to give or
execute any waivers, consents, amendments, modifications or supplements
as a holder of such Collateral Certificate and (iii) the casting of any
vote with respect to the Collateral Certificate or the Noteholders of a
series or tranche if a vote has been called for with respect thereto;
provided, that, in directing any action or casting any vote or giving
any consent as the holder of the Collateral Certificate, the Owner
Trustee on behalf of the Issuer will vote or consent with respect to
such Collateral Certificate the applicable series, class or tranche, as
the case may be, in the same proportion as the Notes were actually
voted by Holders thereof as notified by such Noteholders to the Owner
Trustee on behalf of the Issuer at least two (2) Business Days before
the Owner Trustee on behalf of the Issuer takes such action or casts
such vote or gives such consent.
[END OF ARTICLE X]
ARTICLE XI DO NOT DELETE
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ISSUER
Section 1101. Payment of Principal and Interest. With
respect to each series, class or tranche of Notes, the Issuer will duly
and punctually pay the principal of and interest on such Notes in
accordance with their terms and this Indenture, and will duly comply
with all the other terms, agreements and conditions contained in, or
made in this Indenture for the benefit of, the Notes of such series,
class or tranche.
Section 1102. Maintenance of Office or Agency. The
Issuer will maintain an office, agency or Paying Agent in each Place of
Payment where Notes may be presented or surrendered for payment, where
Notes may be surrendered for transfer or exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer will give prompt written notice to
the 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.
Section 1103. 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 or other
applicable Account pursuant to the provisions of Article V of this
Indenture 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
or other applicable Account for the purpose of making the distributions
referred to above. The Indenture Trustee may revoke such power and
remove the Paying Agent if the Indenture Trustee determines in its sole
discretion that the Paying Agent has failed to perform its obligations
under this Indenture or any Indenture Supplement in any material
respect. The Paying Agent upon removal will return all funds in its
possession to the Indenture Trustee.
The Issuer will cause each Paying Agent (other than the
Indenture Trustee) for any series, class or tranche of Notes to execute
and deliver to the Indenture Trustee an instrument in which such Paying
Agent will agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it so agrees), subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of principal
of or interest on Notes of such series, class or tranche in trust for
the benefit of the Persons entitled thereto until such sums will be
paid to such Persons or otherwise disposed of as herein provided;
(b) if such Paying Agent is not the Indenture Trustee,
give the Indenture Trustee notice of any default by the Issuer (or any
other obligor upon the Notes of such series, class or tranche) in the
making of any such payment of principal or interest on the Notes of
such series, class or tranche;
(c) if such Paying Agent is not the Indenture Trustee, at
any time during the continuance of any such default, upon the written
request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and, if such
Paying Agent is not the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards described in this
Section required to be met by a Paying Agent at the time of its
appointment; and
(e) comply with all requirements of the Internal Revenue
Code with respect to the withholding from any payments made by it on
any Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
The Issuer may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture with respect to any
series, class or tranche of Notes or for any other purpose, pay, or by
an Officer's Certificate direct any Paying Agent to pay, to the
Indenture Trustee all sums held in trust by the Issuer or such Paying
Agent in respect of each and every series, class or tranche of Notes as
to which it seeks to discharge this Indenture or, if for any other
purpose, all sums so held in trust by the Issuer in respect of all
Notes, such sums to be held by the Indenture Trustee upon the same
trusts as those upon which such sums were held by the Issuer or such
Paying Agent; and, upon such payment by any Paying Agent to the
Indenture Trustee, such Paying Agent will be released from all further
liability with respect to such money.
Any money deposited with the Indenture Trustee or any
Paying Agent, or then held by the Issuer, in trust for the payment of
the principal of or interest on any Note of any series, class or
tranche and remaining unclaimed for two years after such principal or
interest has become due and payable will be paid to the Issuer upon
request in an Officer's Certificate, or (if then held by the Issuer)
will be discharged from such trust; and the Holder of such Note will
thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof, and all liability of the Indenture Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Issuer as trustee thereof, will thereupon cease. The Indenture Trustee
or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuer give notice to the Holders of the
Notes as to which the money to be repaid was held in trust, as provided
in Section 106, a notice that such funds remain unclaimed and that,
after a date specified in the notice, which will not be less than
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.
The Issuer initially authorizes The Bank of New York to act
as Paying Agent for the Notes on its behalf. The Issuer may at any
time and from time to time authorize one or more Persons (including the
Indenture Trustee) to act as Paying Agent in addition to or in place of
the Indenture Trustee with respect to any series, class or tranche of
Notes issued under this Indenture.
Each Paying Agent will at all times have a combined capital
and surplus of at least $50,000,000 and be subject to supervision or
examination by a United States Federal or State authority or be
regulated by or subject to the supervision or examination of a
governmental authority of a nation that is 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 1104. Statement as to Compliance. The Issuer
will deliver to the Indenture Trustee and the Note Rating Agencies, on
or before August 31 of each year, beginning in 2002, a written
statement signed by an Issuer Authorized Officer stating that:
(a) a review of the activities of the Issuer during the
prior year and of the Issuer's performance under this Indenture and
under the terms of the Notes has been made under such Issuer Authorized
Officer's supervision; and
(b) to the best of such Issuer Authorized Officer's
knowledge, based on such review, the Issuer has complied in all
material respects with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant (without regard to any
grace period or requirement of notice), specifying each such default
known to such Issuer Authorized Officer and the nature and status
thereof.
Section 1105. Legal Existence. The Issuer will do or
cause to be done all things necessary to preserve and keep in full
force and effect its legal existence.
Section 1106. Further Instruments and Acts. Upon
request of the 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 1107. Compliance with Laws. The Issuer will
comply with the requirements of all applicable laws, the noncompliance
with which would, individually or in the aggregate, materially and
adversely affect the ability of the Issuer to perform its obligations
under the Notes or this Indenture.
Section 1108. Notice of Events of Default. The Issuer
agrees to give the Indenture Trustee and the Note Rating Agencies
prompt written notice of each Event of Default hereunder and each
default on the part of the Master Trust or the Seller of its respective
obligations under the Pooling and Servicing Agreement and any default
of a Derivative Counterparty.
Section 1109. Certain Negative Covenants. The Issuer
will not:
(a) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts withheld in good faith from such payments under the Internal
Revenue Code or other applicable tax law);
(b) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien in favor of the Indenture
Trustee, the Noteholders and any applicable Derivative Counterparty
created by this Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released from any
covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby;
(c) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien in favor
of the Indenture Trustee, the Noteholders and any applicable Derivative
Counterparty created by this Indenture) to be created on or extend to
or otherwise arise upon or burden the Collateral or any part thereof or
any interest therein or the proceeds thereof; or
(d) permit the lien in favor of the Indenture Trustee,
the Noteholders and any applicable Derivative Counterparty created by
this Indenture not to constitute a valid first priority security
interest in the Collateral; or
(e) voluntarily dissolve or liquidate.
Section 1110. No Other Business. The Issuer will not
engage in any business other than as permitted under the Trust
Agreement.
Section 1111. No Borrowing. The Issuer will not issue,
incur, assume, guarantee or otherwise become liable, directly or
indirectly, for any indebtedness for borrowed money except for the
Notes.
Section 1112. 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 1113. Performance of Obligations; Servicing of
Receivables.
(a) The Issuer will not take any action and will use its
best efforts not to permit any action to be taken by others that would
release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the
Collateral or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as expressly
provided in this Indenture, the Trust Agreement or such other
instrument or agreement.
(b) The Issuer will punctually perform and observe all of
its obligations and agreements contained in this Indenture, any
Indenture Supplement, the Trust Agreement and in the instruments and
agreements relating to the Collateral, including but not limited to
filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this
Indenture and the Trust Agreement in accordance with and within the
time periods provided for herein and therein. Except as otherwise
expressly provided herein or therein, the Issuer shall not waive,
amend, modify, supplement or terminate this Indenture, any Indenture
Supplement or the Trust Agreement or any provision thereof without the
consent of the Holders of a majority of the Outstanding Amount of the
Notes of each adversely affected series, class or tranche.
(c) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the
rights of the Indenture Trustee hereunder, the Issuer agrees (i) that
it will not, without the prior written consent of the Indenture Trustee
and a majority in Outstanding Amount of the Notes of each affected
series, class or tranche, amend, modify, waive, supplement, terminate
or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral
(except to the extent otherwise provided in this Indenture or the Trust
Agreement), or waive timely performance or observance by the Servicer
of its obligations under the Pooling and Servicing Agreement; and
(ii) that any such amendment, modification, waiver, supplement,
termination or surrender shall not (A) increase or reduce in any manner
the amount of, or accelerate or delay the timing of, collections of
payments on the Receivables or distributions that are required to be
made for the benefit of the Noteholders or (B) reduce the aforesaid
percentage of the Notes that is required to consent to any such
amendment, modification, waiver, supplement, termination or surrender
without the consent of the Holders of all the Outstanding Notes. If
any such amendment, modification, waiver, supplement, termination or
surrender shall be so consented to by the Indenture Trustee and such
Noteholders, the Issuer agrees to execute and deliver, in its own name
and at its own expense, such agreements, instruments, consents and
other documents as are necessary or appropriate in the circumstances.
Section 1114. Issuer May Consolidate, Etc., Only on
Certain Terms.
(a) The Issuer shall not consolidate or merge with or
into any other Person, unless:
(1) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger (i) shall be a Person
organized and existing under the laws of the United States of
America or any state or the District of Columbia, (ii) shall not
be subject to regulation as an "investment company" under the
Investment Company Act and (iii) shall expressly assume, by an
Indenture Supplement, executed and delivered to the Indenture
Trustee, in a form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of and interest on all
Notes and the performance of every covenant of this Indenture on
the part of the Issuer to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default or Pay Out Event shall have
occurred and be continuing;
(3) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of
Counsel each stating that (i) such consolidation or merger and
such Indenture Supplement comply with this Section 1114, (ii) all
conditions precedent in this Section 1114 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 Opinion of
Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse tax consequence to any Noteholder; and
(6) any action that is necessary to maintain the
lien and security interest created by this Indenture shall have
been taken; and
(7) such action shall not be contrary to the status
of the Issuer as a qualified special purpose entity under
existing accounting literature.
(b) The Issuer shall not convey or transfer any of its
properties or assets, including those included in the Collateral,
substantially as an entirety to any Person, unless:
(1) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the conveyance
or transfer of which is hereby restricted shall (A) be a United
States citizen or a Person organized and existing under the laws
of the United States of America or any state, or the District of
Columbia, (B) expressly assume, by an Indenture Supplement,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed,
all as provided herein, (C) expressly agree by means of such
Indenture Supplement that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the
rights of Holders of the Notes, (D) unless otherwise provided in
such Indenture Supplement, expressly agree to indemnify, defend
and hold harmless the Issuer against and from any loss, liability
or expense arising under or related to this Indenture and the
Notes, (E) expressly agree by means of such Indenture Supplement
that such Person (or if a group of Persons, then one specified
Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Securities Exchange Act in
connection with the Notes and (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 Pay Out 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 Opinion of
Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse tax consequence to any Noteholder;
(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 1114 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 1115. 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 1114 hereof, the Person formed by or surviving
such consolidation or merger (if other than the Issuer) or the Person
to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer
under this Indenture with the same effect as if such Person had been
named as the Issuer herein. In the event of any such conveyance or
transfer, the Person named as the Issuer in the first paragraph of this
Indenture or any successor which shall theretofore have become such in
the manner prescribed in this Section 1115 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 1116. 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 1117. 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 1118. Restricted Payments. The Issuer shall
not, directly or indirectly, (i) pay any dividend or make any
distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to the Owner Trustee or
any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the
Issuer or to the Servicer, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or
(iii) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be
made, (x) distributions as contemplated by, and to the extent funds are
available for such purpose under, the Trust Agreement and (y) payments
to the Indenture Trustee pursuant to
Section 807 hereof. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in
accordance with this Indenture or any Indenture Supplement.
[END OF ARTICLE XI]
ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 1201. 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, 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) with respect to any tranche of Notes, the occurrence
of the Expected Principal Payment Date of such Note;
(b) the occurrence of any Pay Out Event as defined in the
Pooling and Servicing Agreement or any Series 2001-D Pay Out Event as
described in the Series 2001-D Supplement;
(c) The Issuer becomes an investment company within the
meaning of the Investment Company Act; or
(d) 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.
The redemption price of a tranche of Notes so redeemed will
equal the Outstanding principal amount of such tranche, plus interest
accrued and unpaid to but excluding the date of redemption, the payment
of which will be subject to Article V, Article VII and the allocations,
deposits and payments sections of the related Indenture Supplement.
If the Issuer is unable to pay the redemption price in full
on the Monthly 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 Monthly
Principal Payment Date until the Outstanding principal amount of such
tranche, plus all accrued and unpaid interest, is paid in full or the
Legal Maturity Date occurs, whichever is earlier, subject to Article V,
Article VII and the allocations, deposits and payments sections of the
related Indenture Supplement. Any funds in any Supplemental Account
for a redeemed tranche will be applied to make the principal and
interest payments on that tranche on the redemption date, subject to
Article V, Article VII and the allocations, deposits and payments
sections of the related Indenture Supplement. Principal payments on
redeemed tranches will be made first to the senior-most Notes until
paid in full, then to the subordinated Notes until paid in full.
Section 1202. Optional Repurchase. Unless otherwise
provided in the applicable Indenture Supplement for a series, class or
tranche of Notes, the Servicer has the right, but not the obligation,
to redeem a series, class or tranche of Notes in whole but not in part
on any day on or after the day on which the aggregate Nominal
Liquidation Amount of such series, class or tranche is reduced to less
than 5% of its Initial Dollar Principal Amount; provided, however, that
if such series, class or tranche of Notes is of a subordinated class,
the Servicer will not redeem such Notes if the provisions of the
related Indenture Supplement would prevent the payment of such
subordinated Note until a level of prefunding of the principal funding
sub-accounts for the senior classes of Notes for that series has been
reached such that the amount of such deficiency in the required
subordination of a senior class of Notes is no longer required to
provide subordination protection for the senior classes of that series.
If the Servicer elects to redeem a series, class or tranche of Notes,
it will cause the Issuer to notify the Holders of such redemption at
least thirty (30) days prior to the redemption date. The redemption
price of a series, class or tranche so redeemed will equal the
Outstanding principal amount of such tranche, plus interest accrued and
unpaid or principal accreted and unpaid on such tranche to but
excluding the date of redemption, the payment of which will be subject
to Article V, Article VII and the allocations, deposits and payments
sections of the related Indenture Supplement.
If the Issuer is unable to pay the redemption price in full
on the redemption date, monthly payments on such tranche of Notes will
thereafter be made until the Outstanding principal amount of such
tranche, plus all accrued and unpaid interest, is paid in full or the
Legal Maturity Date occurs, whichever is earlier, subject to Article V,
Article VII and the allocations, deposits and payments sections of the
related Indenture Supplement. Any funds in any Supplemental Account
for a redeemed tranche will be applied to make the principal and
interest payments on that tranche on the redemption date in accordance
with the related Indenture Supplement. Principal payments on redeemed
tranches will be made in accordance with the related Indenture
Supplement.
Section 1203. Notice. Promptly after the occurrence of
any Early Redemption Event or a redemption pursuant to Section 1202,
the Issuer will notify the Indenture Trustee and the Note Rating
Agencies in writing of the identity, Stated Principal Amount and
Outstanding Dollar Principal Amount of the affected series, class or
tranche of Notes to be redeemed. Notice of redemption will promptly be
given as provided in Section 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 1202 occurs, (b) the redemption price for such series, class or
tranche of Notes, which will be equal to the Outstanding principal
amount of such series, class or tranche plus interest accrued or
principal accreted and unpaid (if any), the payment of which will be
subject to Article V, Article VII and the allocations, deposits and
payments sections of the related Indenture Supplement and (c) the
series, class or tranche of Notes to be redeemed pursuant to this
Article.
[END OF ARTICLE XII]
ARTICLE XIII
COLLATERAL
Section 1301. Recording, Etc.
(a) The Issuer intends the Security Interest granted
pursuant to this Indenture in favor of the Indenture Trustee to be
prior to all other liens in respect of the Collateral. Subject to
Section 1303, the Issuer will take all actions necessary to obtain and
maintain a perfected lien on and security interest in the Collateral in
favor of the Indenture Trustee. The Issuer will from time to time
execute and deliver all such supplements and amendments hereto and all
such financing statements, continuation statements, instruments of
further assurance and other instruments, all as prepared by the Issuer,
and will take such other action necessary or advisable to:
(i) grant a Security Interest more effectively in
all or any portion of the Collateral;
(ii) maintain or preserve the Security Interest (and
the priority thereof) created by this Indenture or carry out more
effectively the purposes hereof;
(iii) perfect, publish notice of or protect the
validity of any grant made or to be made by this Indenture;
(iv) enforce the Collateral Certificate, the
Derivative Agreements and each other instrument or agreement
included in the Collateral;
(v) preserve and defend title to the Collateral and
the rights of the Indenture Trustee in such Collateral against
the claims of all persons and parties; or
(vi) pay all taxes or assessments levied or assessed
upon the Collateral when due.
(b) The Issuer will from time to time promptly pay and
discharge all financing and continuation statement recording and/or
filing fees, charges and taxes relating to this Indenture, any
amendments thereto and any other instruments of further assurance. The
Issuer hereby designates the Indenture Trustee its agent and attorney-
in-fact to execute upon the Issuer's failure to do so, any financing
statement, continuation statement or other instrument required by the
Indenture Trustee pursuant to this Section.
(c) Without limiting the generality of clauses (a)(ii) or
(a)(iii):
(i) The Issuer will cause this Indenture, all
amendments and supplements hereto and/or all financing statements
and continuation statements and any other necessary documents
covering the Indenture Trustee's right, title and interest to the
Collateral to be promptly recorded, registered and filed, and at
all times to be kept, recorded, registered and filed, all in such
manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the
Indenture Trustee to all property comprising the Collateral. The
Issuer will deliver to the Indenture Trustee file-stamped copies
of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such
recording, registration or filing.
(ii) Within 30 days after the Issuer makes any
change in its name, identity or corporate structure which would
make any financing statement or continuation statement filed in
accordance with paragraph (d)(i) seriously misleading within the
meaning of Section 9-402(7) (or any comparable provision) of the
UCC, the Issuer will give the Indenture Trustee notice of any
such change and will file such financing statements or amendments
as may be necessary to continue the perfection of the Indenture
Trustee's security interest in the Collateral.
(d) The Issuer will give the Indenture Trustee prompt
notice of any relocation of its chief executive office, place of
business or State of location, and any change in the jurisdiction of
its organization, and whether, as a result of such relocation or
change, the applicable provision of the UCC would require the filing of
any amendment of any previously filed financing or continuation
statement or of any new financing statement and will file such
financing statements or amendments as may be necessary to perfect or to
continue the perfection of the Indenture Trustee's security interest in
the Collateral. The Issuer will at all times maintain its chief
executive office within the United States.
(e) The duty of the Indenture Trustee to execute any
instrument required pursuant to this Section will arise only if the
Indenture Trustee has knowledge of the type described in Section 701(c)
of any default of the Issuer in complying with the provisions of this
Section.
Section 1302. Trust Indenture Act Requirements. The
release of any Collateral from the lien created by this Indenture or
the release of, in whole or in part, such liens, will not be deemed to
impair the Security Interests in contravention of the provisions hereof
if and to the extent the Collateral or liens are released pursuant to
the terms hereof. The Indenture Trustee and each of the Noteholders
and any applicable Derivative Counterparty acknowledge that a release
of Collateral or liens strictly in accordance with the terms hereof
will not be deemed for any purpose to be an impairment of the Security
Interests in contravention of the terms of this Indenture. To the
extent applicable, without limitation, the Issuer and each other
obligor on the Notes will cause Trust Indenture Act Section 314(d)
relating to the release of property or securities from the liens hereof
to be complied with. Any certificate or opinion required by Trust
Indenture Act Section 314(d) may be made by an officer of the
appropriate obligor, except in cases in which Trust Indenture Act
Section 314(d) requires that such certificate or opinion be made by an
independent person.
Section 1303. Suits To Protect the Collateral. Subject
to the provisions of this Indenture, the Indenture Trustee will have
power to institute and to maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral by any acts
which may be unlawful or in violation of this Indenture, and such suits
and proceedings as the Indenture Trustee may deem expedient to preserve
or protect the interests of the Noteholders and any applicable
Derivative Counterparty and the interests of the Indenture Trustee and
the Holders of the Notes in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment,
rule or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment, rule or order would
impair the Security Interests or be prejudicial to the interests of the
Holders of the Notes or the Indenture Trustee). No counterparties to a
Derivative Agreement may direct the Indenture Trustee to enforce the
Security Interest. Each Derivative Counterparty's rights consist
solely of the right to receive collections allocated for its benefit
pursuant to the related Indenture Supplement.
Section 1304. Purchaser Protected. In no event will
any purchaser in good faith of any property purported to be released
hereunder be bound to ascertain the authority of the Indenture Trustee
to execute the release or to inquire as to the satisfaction of any
conditions required by the provisions hereof for the exercise of such
authority or to see to the application of any consideration given by
such purchaser or other transferee; nor will any purchaser or other
transferee of any property or rights permitted by this Article to be
sold be under any obligation to ascertain or inquire into the authority
of the Issuer or any other obligor, as applicable, to make any such
sale or other transfer.
Section 1305. Powers Exercisable by Receiver or
Indenture Trustee. In case the Collateral shall be in the possession
of a receiver or trustee, lawfully appointed, the powers conferred in
this Article upon the Issuer or any other obligor, as applicable, with
respect to the release, sale or other disposition of such property may
be exercised by such receiver or trustee, and an instrument signed by
such receiver or trustee shall be deemed the equivalent of any similar
instrument of the Issuer or any other obligor, as applicable, or of any
officer or officers thereof required by the provisions of this Article.
Section 1306. Determinations Relating to Collateral.
In the event (i) the Indenture Trustee shall receive any written
request from the Issuer or any other obligor for consent or approval
with respect to any matter or thing relating to any Collateral or the
Issuer's or any other obligor's obligations with respect thereto or
(ii) there shall be due to or from the Indenture Trustee under the
provisions hereof any performance or the delivery of any instrument or
(iii) the Indenture Trustee shall become aware of any nonperformance by
the Issuer or any other obligor of any covenant or any breach of any
representation or warranty of the Issuer or any other obligor set forth
in this Indenture, then, in each such event, the Indenture Trustee
shall be entitled to hire experts, consultants, agents and attorneys to
advise the Indenture Trustee on the manner in which the Indenture
Trustee should respond to such request or render any requested
performance or response to such nonperformance or breach (the expenses
of which will be reimbursed to the Agent and the Indenture Trustee
pursuant to Section 807). The Indenture Trustee will be fully
protected in the taking of any action recommended or approved by any
such expert, consultant, agent or attorney or agreed to by the Majority
Holders of the Outstanding Notes.
Section 1307. Release of Collateral.
(a) Subject to the payment of its fees and expenses
pursuant to Section 807, the Indenture Trustee will, at the request of
the Issuer or when otherwise required by the provisions of this
Indenture, execute instruments to release property from the lien of
this Indenture, or convey the Indenture Trustee's interest in the same,
in a manner and under circumstances which are not inconsistent with the
provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article will be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of
any funds.
(b) Upon delivery of an Officer's Certificate certifying
that the Issuer's obligations under this Indenture have been satisfied
and discharged by complying with the provisions of this Article, the
Indenture Trustee will (i) execute and deliver such releases,
termination statements and other instruments (in recordable form, where
appropriate) as the Issuer or any other obligor, as applicable, may
reasonably request evidencing the termination of the Security Interests
created by this Indenture and (ii) not to be deemed to hold the
Security Interests for the benefit of the Indenture Trustee, the
Noteholders and any applicable Derivative Counterparty.
(c) MBNA and the Noteholders will be entitled to receive
at least ten (10) days written notice when the Indenture Trustee
proposes to take any action pursuant to clause (a), accompanied by
copies of any instruments involved, and the Indenture Trustee will also
be entitled to require, as a condition to such action, an Opinion of
Counsel, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with.
Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any
such action.
Section 1308. Certain Actions by Indenture Trustee.
Any action taken by the Indenture Trustee pursuant to this Article in
respect of the release of Collateral will be taken by the Indenture
Trustee as its interest in such Collateral may appear, and no provision
of this Article is intended to, or will, excuse compliance with any
provision hereof.
Section 1309. Opinions as to Collateral.
(a) On the Effective Date, the Issuer will furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental
hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation
statements, as are necessary to perfect and maintain the perfection of
the Security Interest granted by this Indenture in favor of the
Indenture Trustee and reciting the details of such action, or stating
that, in the opinion of such counsel, no such action is necessary to
make such lien and security interest perfected.
(b) On or before March 31 in each calendar year,
beginning in 2002, the Issuer will furnish to the Indenture Trustee an
Opinion of Counsel with respect to each Uniform Commercial Code
financing statement which has been filed by the Issuer either stating
that, (i) in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to
maintain the first priority lien and Security Interest created by this
Indenture and reciting the details of such action or (ii) in the
opinion of such counsel no such action is necessary to maintain such
lien and Security Interest. Such Opinion of Counsel will also describe
the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and
the execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to
maintain the lien and Security Interest of this Indenture until
March 31 in the following calendar year.
Section 1310. Delegation of Duties. The Issuer may
contract with or appoint other Persons (including MBNA and its
Affiliates) to assist it in performing its duties under this Indenture,
and any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate will be deemed to be
action taken by the Issuer.
[END OF ARTICLE XIII]
ARTICLE XIV
MISCELLANEOUS
Section 1401. No Petition. The Indenture Trustee, by
entering into this Indenture, each Derivative Counterparty, by
designating that the obligations of the Issuer pursuant to the
applicable Derivative Agreement are secured by the Collateral, and each
Noteholder, by accepting a Note, agrees that it will not at any time
institute against MBNA, the Master Trust or the Issuer, or join in any
institution against MBNA, the Master Trust or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or
state bankruptcy or similar law in connection with any obligations
relating to the Notes, this Indenture or any Derivative Agreement.
Section 1402. Trust Obligations. No recourse may be
taken, directly or indirectly, with respect to the obligations of the
Issuer on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the
Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Owner
Trustee in its individual capacity, any holder of a beneficial interest
in the Issuer or the Owner Trustee or of any successor or assign of the
Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Owner Trustee has
no such obligations in its individual capacity).
Section 1403. Limitations on Liability.
(a) It is expressly understood and agreed by the parties
hereto that (i) this Indenture is executed and delivered by the
Beneficiary not individually or personally but solely as Beneficiary,
in the exercise of the powers and authority conferred and vested in it,
(ii) each of the representations, undertakings and agreements herein
made on the part of the Issuer is made and intended not as a personal
representation, undertaking or agreement by the Beneficiary but is made
and intended for the purpose of binding only the Issuer, (iii) nothing
herein contained will be construed as creating any liability on the
Beneficiary individually or personally, to perform any covenant of the
Issuer either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties to this
Indenture and by any Person claiming by, through or under them and
(iv) under no circumstances will the Beneficiary be personally liable
for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Issuer under this
Indenture or any related documents.
(b) None of the Indenture Trustee, the Owner Trustee,
MBNA or any other beneficiary of the Issuer or any of their respective
officers, directors, employers or agents will have any liability with
respect to this Indenture, and recourse may be had solely to the
Collateral pledged to secure the Notes issued by MBNA Credit Card
Master Note Trust.
Section 1404. Tax Treatment. The Issuer and the
Noteholders agree that the Notes are intended to be debt of MBNA 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 1405. 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 1406. 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 1407. Termination of Issuer. The Issuer and
the respective obligations and responsibilities of the Indenture
Trustee created hereby (other than the obligation of the Indenture
Trustee to make payments to Noteholders as hereinafter set forth) shall
terminate, except with respect to the duties described in Section
1408(b), as provided in the Trust Agreement.
Section 1408. Final Distribution.
(a) The Servicer 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 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 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 Account held for the benefit of
such Noteholders. The Indenture Trustee and the Paying Agent shall pay
to the Issuer any monies held by them for the payment of principal or
interest that remains unclaimed for 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 1409. 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,
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 Account) and all proceeds
thereof, except for amounts held by the Indenture Trustee pursuant to
Section 1408(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.
Section 1410. Derivative Counterparty as Third-Party
Beneficiary. Each Derivative Counterparty is a third-party beneficiary
of this Indenture to the extent specified in the applicable Derivative
Agreement or Indenture Supplement.
[END OF ARTICLE XIV]
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
MBNA CREDIT CARD MASTER NOTE TRUST,
by MBNA America Bank, National
Association,
as Beneficiary
By: /S/ CHRISTOPHER A HALMY
Name: CHRISTOPHER A HALMY
Title: VICE PRESIDENT
THE BANK OF NEW YORK, as Indenture
Trustee
and not in its individual capacity
By: /S/ CHRISTOPHER A HALMY
Name: CHRISTOPHER A HALMY
Title: VICE PRESIDENT
Acknowledged and Accepted:
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
as Servicer
By: _______________________________
Name:
Title:
STATE OF DELAWARE )
)ss:
COUNTY OF CASTLE )
On [ ], [ ], before me personally came ____________, to me
known, who, being by me duly sworn, did depose and say that he resides
at ____________; that he is a ___________ of MBNA America Bank,
National Association, acting not in its individual capacity but solely
as Beneficiary of the MBNA Credit Card Master Note Trust, one of the
parties described in and which executed the above instrument; that he
knows the corporate seal of the Beneficiary; that the seal affixed to
that instrument is such corporate seal; that it was affixed by
authority of the board of directors of the corporation; and that he
signed his name thereto by like authority.
_____________________________
Name
_____________________________
[Notarial Seal]
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK )
On [ ], [ ], before me personally came [ ], to me known,
who, being by me duly sworn, did depose and say that he resides at [
]; that he is [ ] of The Bank of New York, one of the parties
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to that
instrument is such corporate seal; that it was affixed by authority of
the board of directors of the corporation; and that he signed his name
thereto by like authority.
_______________________
Name
_______________________
[Notarial Seal]
EXHIBIT A
[FORM OF] PAYMENT INSTRUCTION
MBNA AMERICA BANK, NATIONAL ASSOCIATION
________________________________________
MBNA CREDIT CARD MASTER NOTE TRUST
________________________________________
- -Unless otherwise indicated, capitalized terms used in this Payment
Instruction have their respective meanings set forth in the Indenture;
provided, that the "preceding Monthly Period" shall mean the Monthly
Period immediately preceding the calendar month in which this Payment
Instruction is delivered. This Payment Instruction is delivered
pursuant to Section 908 of the Indenture. --
- ---
- -The date of this Payment Instruction is a Transfer Date under the
Pooling and Servicing Agreement.--
- ---
I-Allocations of Available Funds:--
- -A.Available Funds paid to Series [______].........$_______--
- -[B.Available Funds paid to Series [______]..........$_______--
- -C.Available Funds paid to Series [______].........$_______--
- -Total$_______]--
- ---
II.-Allocations of Available Principal Amounts:--
- -A.Available Principal Amounts paid to Series [____]........$_______--
- -[B.Available Principal Amounts paid to Series [____]........$_______--
- -C.Available Principal Amounts paid to Series [____]........$_______--
- -Total$_______]--
- ---
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Payment Instruction this ____ day of __________, ____.
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
as Beneficiary of the MBNA Credit
Card Master Note Trust
and
as Servicer of the MBNA Master
Credit Card Trust II
By: ________________________
Name:
Title:
Schedule to Payment Instruction
MBNA AMERICA BANK, NATIONAL ASSOCIATION
________________________________________
MBNA CREDIT CARD MASTER NOTE TRUST
________________________________________
A separate schedule is to be attached for each series, with
appropriate changes and additions to reflect the specifics of the
related Indenture Supplement.
EXHIBIT B
[FORM OF] MONTHLY NOTEHOLDERS' STATEMENT
Date: ______ __, ____
MBNA CREDIT CARD MASTER NOTE TRUST
MONTHLY PERIOD ENDING _______ __, ____
Reference is made to the Series 2001-D Supplement (the "Series
2001-D Supplement"), dated as of May __, 2001, between MBNA America
Bank, National Association, a national banking association (the
"Bank"), as Seller and Servicer, and The Bank of New York, as Trustee,
and the Indenture (the "Indenture"), dated as of May __, 2001, between
MBNA Credit Card Master Note Trust, as Issuer, and The Bank of New
York, as Indenture Trustee. Terms used herein and not defined herein
have the meanings ascribed to them in the Series 2001-D Supplement, the
Indenture and the related Indenture Supplements, as applicable.
The following computations are prepared with respect to the
Transfer Date of _______ __, ____ and with respect to the performance
of the Trust during the related Monthly Period.
A. Reductions of and Increases to Nominal Liquidation Amount:
Series-Nominal Liquidation Amount for prior Monthly Period-Increases
from accretions on Principal for Discount Notes-Increases from amounts
withdrawn from the Principal Funding sub-Account in respect of
Prefunding Excess Amount-Reimburse-ments from Available Funds-
Reductions due to reallocations
of Available Principal Amounts-Reductions due to Investor Charge-Offs-
Reductions due to amounts on deposit in the Principal Funding sub-
Account-Current Nominal Liquidation Amount
[Series [____]
[Series [____]
[Total:]
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Monthly Noteholders' Statement this __th day of
__________, _____.
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
as Beneficiary of the MBNA
Credit Card Master Note Trust
and
as Servicer of the MBNA Master
Credit Card Trust II
By: ______________________________
Name:
Title:
Schedule to Monthly Noteholders' Statement
MBNA AMERICA BANK, NATIONAL ASSOCIATION
________________________________________
MBNA CREDIT CARD MASTER NOTE TRUST
________________________________________
A separate schedule is to be attached for each series, with
appropriate changes and additions to reflect the specifics of the
related Indenture Supplement.
EXHIBIT C
[FORM OF] INVESTMENT LETTER
[Date]
The Bank of New York
as Indenture Trustee,
101 Barclay Street
Floor 12 East
New York, New York 10286
Attention: Corporate Trust Department
MBNA Credit Card Master Note Trust
c/o MBNA America Bank, National Association, as Beneficiary
400 Christiana Road
Newark, Delaware 19713
Attention: Jack Fioravanti
Re: Purchase of $___________ principal amount of MBNA
Credit Card Master Note 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 (iv) below) are able to bear the economic
risk of an investment in the Notes. We (and any account for which we
are purchasing under paragraph (iv) below) are an "accredited investor"
(as such term is defined in Rule 501(a)(1), (2) or (3) of Regulation D
under the Securities Act).
(4) We are acquiring the Notes for our own account or for
accounts as to which we exercise sole investment discretion and not
with a view to any distribution of the Notes, subject, nevertheless, to
the understanding that the disposition of our property shall at all
times be and remain within our control;
(5) We agree that the Notes must be held indefinitely by us
unless subsequently registered under the Securities Act or an exemption
from any registration requirements of the Securities Act and any
applicable state securities law is available;
(6) We agree that in the event that at some future time we wish
to dispose of or exchange any of the Notes (such disposition or
exchange not being currently foreseen or contemplated), we will not
transfer or exchange any of the Notes unless:
(a)(i) the sale is of at least U.S. $250,000 principal
amount of Notes to an Eligible Purchaser (as defined below), (ii)
a letter to substantially the same effect as paragraphs (1), (2),
(3), (4), (5) and (6) of this letter is executed promptly by the
purchaser and (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 Servicer, the Trustee or the Note Registrar so
requests, we theretofore have furnished to such party an opinion
of counsel satisfactory to such party, in form and substance
satisfactory to such party, to such effect; or
(d) the Notes are transferred pursuant to an exception from
the registration requirements of the Securities Act under Rule
144A under the Securities Act; and
(7) We understand that the Notes will bear a legend to
substantially the following effect:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS NOTE NOR
ANY PORTION HEREOF MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS
OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO
CERTAIN CONDITIONS SET FORTH IN THE INDENTURE REFERRED TO
HEREIN."
This legend may be removed if the Issuer, the 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 May __,
2001, between MBNA Credit Card Master Note Trust and The Bank of New
York, as indenture trustee.
Very truly yours,
__________________________
(Name of Purchaser)
By________________________
(Authorized officer)
EXHIBIT D-1
[FORM OF] CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG FOR
DELIVERY OF DEFINITIVE NOTES IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL NOTE
MBNA CREDIT CARD MASTER NOTE 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 MBNAseries, 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 May 24, 2001, (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 D-2 to the Indenture Supplement, or (b) from _____________ ___,
______, substantially in the form of Exhibit D-3 to the Indenture
Supplement, and (ii) the Submitted Portion includes no part of the
Temporary Global Note excepted in such certificates.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such
certificates to the effect that the statements made by them with
respect to any part of the Submitted Portion are no longer true and
cannot be relied on as of the date hereof.
We understand that this certificate is required in connection
with certain securities and tax laws in the United States of America.
If administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy hereof
to any interested party in such proceedings.
Dated: _____________ ___, ______, [
as operator of the Euroclear
System]
[Clearstream, Luxembourg]
By_________________________________
____
EXHIBIT D-2
[FORM OF] CERTIFICATE TO BE DELIVERED TO
EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY WITH RESPECT TO REGISTERED NOTES SOLD TO QUALIFIED
INSTITUTIONAL BUYERS
MBNA CREDIT CARD MASTER NOTE 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
EXHIBIT D-3
[FORM OF] CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM, LUXEMBOURG
BY A BENEFICIAL OWNER
OF NOTES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
MBNA CREDIT CARD MASTER NOTE 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.
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.
GRANTING CLAUSE
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions 3
Section 102. Compliance Certificates and Opinions 19
Section 103. Form of Documents Delivered to Indenture
Trustee 20
Section 104. Acts of Noteholders 20
Section 105. Notices, etc., to Indenture Trustee and
Issuer 21
Section 106. Notices to Noteholders; Waiver 22
Section 107. Conflict with Trust Indenture Act 22
Section 108. Effect of Headings and Table of Contents 23
Section 109. Successors and Assigns 23
Section 110. Separability 23
Section 111. Benefits of Indenture 23
Section 112. Governing Law 23
Section 113. Counterparts 23
Section 114. Indenture Referred to in the Trust Agreement 23
Section 115. Legal Holidays 23
ARTICLE II
NOTE FORMS
Section 201. Forms Generally 24
Section 202. Forms of Notes 24
Section 203. Form of Indenture Trustee's Certificate of
Authentication 24
Section 204. Notes Issuable in the Form of a Global Note 25
Section 205. Temporary Global Notes and Permanent Global
Notes 27
Section 206. Beneficial Ownership of Global Notes 28
Section 207. Notices to Depository 29
ARTICLE III
THE NOTES
Section 301. General Title; General Limitations; Issuable
in Series; Terms of a Series, Class or
Tranche 30
Section 302. Denominations 33
Section 303. Execution, Authentication and Delivery and
Dating 33
Section 304. Temporary Notes 34
Section 305. Registration, Transfer and Exchange 34
Section 306. Mutilated, Destroyed, Lost and Stolen Notes 36
Section 307. Payment of Interest; Interest Rights
Preserved 37
Section 308. Persons Deemed Owners 37
Section 309. Cancellation 37
Section 310. New Issuances of Notes 37
Section 311. Specification of Required Subordinated Amount
and other Terms with Respect to each Tranche 39
Section 312. Reallocation Groups 40
Section 313. Excess Available Funds Sharing Groups 40
ARTICLE IV
ACCOUNTS AND INVESTMENTS
Section 401. Collections 41
Section 402. Accounts 41
Section 403. Investment of Funds in the Accounts 41
ARTICLE V
ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 501. Allocations of Available Funds 44
Section 502. Allocations of Available Principal Amounts 44
Section 503. Final Payment 44
Section 504. Payments within a Series, Class or Tranche 45
Section 505. Allocations of Collections of Finance Charge
Receivables Allocable to the Segregated
Seller Interest 45
ARTICLE VI
SATISFACTION AND DISCHARGE;
CANCELLATION OF NOTES HELD
BY THE ISSUER OR MBNA
Section 601. Satisfaction and Discharge of Indenture 46
Section 602. Application of Trust Money 46
Section 603. Cancellation of Notes Held by the Issuer or
MBNA 47
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 701. Events of Default 48
Section 702. Acceleration of Maturity; Rescission and
Annulment 49
Section 703. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee 50
Section 704. Indenture Trustee May File Proofs of Claim 51
Section 705. Indenture Trustee May Enforce Claims Without
Possession of Notes 51
Section 706. Application of Money Collected 52
Section 707. Indenture Trustee May Elect to Hold the
Collateral Certificate 52
Section 708. Sale of Receivables for Accelerated Notes 52
Section 709. Noteholders Have the Right to Direct the
Time, Method and Place of Conducting Any
Proceeding for Any Remedy Available to the
Indenture Trustee 52
Section 710. Limitation on Suits 53
Section 711. Unconditional Right of Noteholders to Receive
Principal and Interest; Limited Recourse 53
Section 712. Restoration of Rights and Remedies 54
Section 713. Rights and Remedies Cumulative 54
Section 714. Delay or Omission Not Waiver 54
Section 715. Control by Noteholders 54
Section 716. Waiver of Past Defaults 54
Section 717. Undertaking for Costs 55
Section 718. Waiver of Stay or Extension Laws 55
ARTICLE VIII
THE INDENTURE TRUSTEE
Section 801. Certain Duties and Responsibilities 56
Section 802. Notice of Defaults 57
Section 803. Certain Rights of Indenture Trustee 57
Section 804. Not Responsible for Recitals or Issuance of
Notes 58
Section 805. May Hold Notes 58
Section 806. Money Held in Trust 58
Section 807. Compensation and Reimbursement, Limit on
Compensation, Reimbursement and Indemnity 59
Section 808. Disqualification; Conflicting Interests 59
Section 809. Corporate Indenture Trustee Required;
Eligibility 59
Section 810. Resignation and Removal; Appointment of
Successor 60
Section 811. Acceptance of Appointment by Successor 61
Section 812. Merger, Conversion, Consolidation or
Succession to Business 62
Section 813. Preferential Collection of Claims Against
Issuer 62
Section 814. Appointment of Authenticating Agent 62
Section 815. Tax Returns 64
Section 816. Representations and Covenants of the
Indenture Trustee 64
Section 817. Custody of the Collateral 65
Section 818. Indenture Trustee's Application for
Instructions from the Issuer 65
ARTICLE IX
NOTEHOLDERS' MEETINGS, LISTS,
REPORTS BY INDENTURE TRUSTEE,
ISSUER AND BENEFICIARY
Section 901. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders 66
Section 902. Preservation of Information; Communications
to Noteholders 66
Section 903. Reports by Indenture Trustee 67
Section 904. Meetings of Noteholders; Amendments and
Waivers 68
Section 905. Reports by Issuer to the Commission 69
Section 906. Reports by Indenture Trustee 69
Section 907. Monthly Noteholders' Statement 70
Section 908. Payment Instruction to Master Trust 70
ARTICLE X
INDENTURE SUPPLEMENTS; AMENDMENTS TO
THE POOLING AND SERVICING AGREEMENT
AND AMENDMENTS TO THE TRUST AGREEMENT
Section 1001. Supplemental Indentures Without Consent of
Noteholders 71
Section 1002. Supplemental Indentures with Consent of
Noteholders 72
Section 1003. Execution of Indenture Supplements 74
Section 1004. Effect of Indenture Supplements 74
Section 1005. Conformity with Trust Indenture Act 74
Section 1006. Reference in Notes to Indenture Supplements 74
Section 1007. Amendments to the Pooling and Servicing
Agreement 74
Section 1008. Amendments to the Trust Agreement 75
Section 1009. Notice 75
ARTICLE XI
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF ISSUER
Section 1101. Payment of Principal and Interest 77
Section 1102. Maintenance of Office or Agency 77
Section 1103. Money for Note Payments to be Held in Trust 77
Section 1104. Statement as to Compliance 79
Section 1105. Legal Existence 79
Section 1106. Further Instruments and Acts 79
Section 1107. Compliance with Laws 79
Section 1108. Notice of Events of Default 79
Section 1109. Certain Negative Covenants 79
Section 1110. No Other Business 80
Section 1111. No Borrowing 80
Section 1112. Rule 144A Information 80
Section 1113. Performance of Obligations; Servicing of
Receivables 80
Section 1114. Issuer May Consolidate, Etc., Only on Certain
Terms 81
Section 1115. Successor Substituted 83
Section 1116. Guarantees, Loans, Advances and Other
Liabilities 83
Section 1117. Capital Expenditures 83
Section 1118. Restricted Payments 83
ARTICLE XII
EARLY REDEMPTION OF NOTES
Section 1201. Applicability of Article 85
Section 1202. Optional Repurchase 85
Section 1203. Notice 86
ARTICLE XIII
COLLATERAL
Section 1301. Recording, Etc. 87
Section 1302. Trust Indenture Act Requirements 88
Section 1303. Suits To Protect the Collateral 88
Section 1304. Purchaser Protected 89
Section 1305. Powers Exercisable by Receiver or Indenture
Trustee 89
Section 1306. Determinations Relating to Collateral 89
Section 1307. Release of Collateral 89
Section 1308. Certain Actions by Indenture Trustee 90
Section 1309. Opinions as to Collateral 90
Section 1310. Delegation of Duties 91
ARTICLE XIV
MISCELLANEOUS
Section 1401. No Petition 92
Section 1402. Trust Obligations 92
Section 1403. Limitations on Liability 92
Section 1404. Tax Treatment 93
Section 1405. Actions Taken by the Issuer 93
Section 1406. Alternate Payment Provisions 93
Section 1407. Termination of Issuer 93
Section 1408. Final Distribution 93
Section 1409. Termination Distributions 94
Section 1410. Derivative Counterparty as Third-Party
Beneficiary 94
TABLE OF CONTENTS
(continued)
Page
DOCSDC1:124136.5 ii