EXHIBIT 4.1
FORM OF INDENTURE
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MBNA CREDIT CARD MASTER NOTE TRUST
as Issuer
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INDENTURE
dated as of ______________ ____, 2001
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THE BANK OF NEW YORK
as Indenture Trustee
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TABLE OF CONTENTS
Page
GRANTING CLAUSE
Article I
Definitions and Other Provisions
of General Application
Section 101. Definitions................................................................. 4
Section 102. Compliance Certificates and Opinions........................................ 17
Section 103. Form of Documents Delivered to Indenture Trustee............................ 18
Section 104. Acts of Noteholders......................................................... 18
Section 105. Notices, etc., to Indenture Trustee and Issuer.............................. 19
Section 106. Notices to Noteholders; Waiver.............................................. 20
Section 107. Conflict with Trust Indenture Act........................................... 21
Section 108. Effect of Headings and Table of Contents.................................... 21
Section 109. Successors and Assigns...................................................... 21
Section 110. Separability................................................................ 21
Section 111. Benefits of Indenture....................................................... 21
Section 112. Governing Law............................................................... 21
Section 113. Counterparts................................................................ 21
Section 114. Indenture Referred to in the Trust Agreement................................ 21
Section 115. Legal Holidays.............................................................. 21
Article II
Note Forms
Section 201. Forms Generally............................................................. 23
Section 202. Forms of Notes.............................................................. 23
Section 203. Form of Indenture Trustee's Certificate of Authentication................... 23
Section 204. Notes Issuable in the Form of a Global Note................................. 24
Section 205. Temporary Global Notes and Permanent Global Notes........................... 26
Section 206. Beneficial Ownership of Global Notes........................................ 27
Section 207. Notices to Depository....................................................... 28
Article III
The Notes
Section 301. General Title; General Limitations; Issuable in Series; Terms of a Series,
Class or Tranche............................................................ 29
Section 302. Denominations............................................................... 32
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Section 303. Execution, Authentication and Delivery and Dating........................... 32
Section 304. Temporary Notes............................................................. 33
Section 305. Registration, Transfer and Exchange......................................... 33
Section 306. Mutilated, Destroyed, Lost and Stolen Notes................................. 35
Section 307. Payment of Interest; Interest Rights Preserved.............................. 36
Section 308. Persons Deemed Owners....................................................... 36
Section 309. Cancellation................................................................ 36
Section 310. New Issuances of Notes...................................................... 36
Section 311. Specification of Required Subordinated Amount and other Terms with Respect
to each Tranche............................................................. 38
Section 312. Reallocation Groups......................................................... 38
Section 313. Excess Available Funds Sharing Groups....................................... 38
Article IV
Accounts and Investments
Section 401. Collections................................................................. 39
Section 402. Accounts.................................................................... 39
Section 403. Investment of Funds in the Accounts......................................... 39
Article V
Allocations, Deposits and Payments
Section 501. Allocations of Available Funds.............................................. 42
Section 502. Allocations of Available Principal Amounts.................................. 42
Section 503. Final Payment............................................................... 42
Section 504. Payments within a Series, Class or Tranche.................................. 42
Article VI
Satisfaction and Discharge;
Cancellation of Notes Held
by the Issuer or MBNA
Section 601. Satisfaction and Discharge of Indenture..................................... 43
Section 602. Application of Trust Money.................................................. 43
Section 603. Cancellation of Notes Held by the Issuer or MBNA............................ 43
Article VII
Remedies
Section 701. Events of Default........................................................... 45
Section 702. Acceleration of Maturity; Rescission and Annulment.......................... 46
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(continued)
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Section 703. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee... 47
Section 704. Indenture Trustee May File Proofs of Claim.................................. 48
Section 705. Indenture Trustee May Enforce Claims Without Possession of Notes............ 48
Section 706. Application of Money Collected.............................................. 49
Section 707. Indenture Trustee May Elect to Hold the Collateral Certificate.............. 49
Section 708. Sale of Receivables for Accelerated Notes................................... 49
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..................................................................... 49
Section 710. Limitation on Suits......................................................... 49
Section 711. Unconditional Right of Noteholders to Receive Principal and Interest;
Limited Recourse............................................................ 50
Section 712. Restoration of Rights and Remedies.......................................... 50
Section 713. Rights and Remedies Cumulative.............................................. 51
Section 714. Delay or Omission Not Waiver................................................ 51
Section 715. Control by Noteholders...................................................... 51
Section 716. Waiver of Past Defaults..................................................... 51
Section 717. Undertaking for Costs....................................................... 52
Section 718. Waiver of Stay or Extension Laws............................................ 52
Article VIII
The Indenture Trustee
Section 801. Certain Duties and Responsibilities......................................... 53
Section 802. Notice of Defaults.......................................................... 54
Section 803. Certain Rights of Indenture Trustee......................................... 54
Section 804. Not Responsible for Recitals or Issuance of Notes........................... 55
Section 805. May Hold Notes.............................................................. 55
Section 806. Money Held in Trust......................................................... 55
Section 807. Compensation and Reimbursement, Limit on Compensation, Reimbursement
and Indemnity............................................................... 56
Section 808. Disqualification; Conflicting Interests..................................... 56
Section 809. Corporate Indenture Trustee Required; Eligibility........................... 56
Section 810. Resignation and Removal; Appointment of Successor........................... 57
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Section 811. Acceptance of Appointment by Successor...................................... 58
Section 812. Merger, Conversion, Consolidation or Succession to Business................. 59
Section 813. Preferential Collection of Claims Against Issuer............................ 59
Section 814. Appointment of Authenticating Agent......................................... 59
Section 815. Tax Returns................................................................. 61
Section 816. Representations and Covenants of the Indenture Trustee...................... 61
Section 817. Custody of the Collateral................................................... 62
Section 818. Indenture Trustee's Application for Instructions from the Issuer............ 62
Article IX
Noteholders' Meetings, Lists,
Reports by Indenture Trustee,
Issuer and Beneficiary
Section 901. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders...... 63
Section 902. Preservation of Information; Communications to Noteholders.................. 63
Section 903. Reports by Indenture Trustee................................................ 64
Section 904. Meetings of Noteholders; Amendments and Waivers............................. 65
Section 905. Reports by Issuer........................................................... 66
Section 906. Reports by Indenture Trustee................................................ 66
Section 907. Issuer's Report............................................................. 67
Section 908. Payment Request to Master Trust............................................. 67
Section 909. Monthly Computation Statement............................................... 67
Article X
Supplemental Indentures; Amendments
to the Pooling and Servicing Agreement
and Amendments to the Trust Agreement
Section 1001. Supplemental Indentures Without Consent of Noteholders...................... 68
Section 1002. Supplemental Indentures with Consent of Noteholders......................... 70
Section 1003. Execution of Supplemental Indentures........................................ 71
Section 1004. Effect of Supplemental Indentures........................................... 71
Section 1005. Conformity with Trust Indenture Act......................................... 71
Section 1006. Reference in Notes to Supplemental Indentures............................... 71
Section 1007. Amendments to the Pooling and Servicing Agreement........................... 72
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(continued)
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Section 1008. Amendments to the Trust Agreement........................................... 72
Section 1009. Notice...................................................................... 73
Article XI
Representations, Warranties and Covenants of Issuer
Section 1101. Payment of Principal and Interest........................................... 74
Section 1102. Maintenance of Office or Agency............................................. 74
Section 1103. Money for Note Payments to be Held in Trust................................. 74
Section 1104. Statement as to Compliance.................................................. 76
Section 1105. Legal Existence............................................................. 76
Section 1106. Further Instruments and Acts................................................ 76
Section 1107. Compliance with Laws........................................................ 76
Section 1108. Notice of Events of Default................................................. 76
Section 1109. Certain Negative Covenants.................................................. 76
Section 1110. No Other Business........................................................... 77
Section 1111. No Borrowing................................................................ 77
Section 1112. Rule 144A Information....................................................... 77
Section 1113. Performance of Obligations; Servicing of Receivables........................ 77
Section 1114. Issuer May Consolidate, Etc., Only on Certain Terms......................... 78
Section 1115. Successor Substituted....................................................... 80
Section 1116. Guarantees, Loans, Advances and Other Liabilities........................... 80
Section 1117. Capital Expenditures........................................................ 80
Section 1118. Restricted Payments......................................................... 80
Article XII
Early Redemption of Notes
Section 1201. Applicability of Article.................................................... 81
Section 1202. Optional Repurchase......................................................... 81
Section 1203. Notice...................................................................... 82
Article XIII
Collateral
Section 1301. Recording, Etc.............................................................. 83
Section 1302. Trust Indenture Act Requirements............................................ 83
Section 1303. Suits To Protect the Collateral............................................. 84
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(continued)
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Section 1304. Purchaser Protected......................................................... 84
Section 1305. Powers Exercisable by Receiver or Indenture Trustee......................... 84
Section 1306. Determinations Relating to Collateral....................................... 84
Section 1307. Release of Collateral....................................................... 85
Section 1308. Certain Actions by Indenture Trustee........................................ 85
Section 1309. Opinions as to Collateral................................................... 85
Section 1310. Delegation of Duties........................................................ 86
Article XIV
Miscellaneous
Section 1401. No Petition................................................................. 87
Section 1402. Trust Obligations........................................................... 87
Section 1403. Limitations on Liability.................................................... 87
Section 1404. Tax Treatment............................................................... 88
Section 1405. Actions Taken by the Issuer................................................. 88
Section 1406. Alternate Payment Provisions................................................ 88
Section 1407. Termination of Issuer....................................................... 88
Section 1408. Final Distribution.......................................................... 88
Section 1409. Termination Distributions................................................... 89
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EXHIBITS
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Exhibit A [Form of] Payment Request
Exhibit B [Form of] Monthly Computation Statement
Exhibit C [Form of] Issuer's Report
Exhibit D [Form of] Investment Letter
Exhibit E-1 [Form of] Certificate of Foreign Clearing Agency
Exhibit E-2 [Form of] Alternate Certificate to be Delivered to Foreign
Clearing Agency
Exhibit E-3 [Form of] Certificate to be Delivered to Foreign Clearing Agency
Exhibit F [Form of] Indenture Supplement
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THIS INDENTURE between MBNA CREDIT CARD MASTER NOTE TRUST, a statutory
business trust organized under the laws of the State of Delaware (the "Issuer"),
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having its principal office at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, and THE BANK OF NEW YORK, a New York banking
corporation ( the "Indenture Trustee"), is made and entered into as of ________
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__, 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
To secure the Issuer's obligations under the Notes, the Issuer hereby
grants to the Indenture Trustee for the benefit and security of (a) the
Noteholders, (b) each counterparty to a Derivative Agreement entered into in
connection with issuance of a tranche of Notes that expressly states it is
entitled to the benefit of the Collateral, subject to Section 1303 and (c) the
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Indenture Trustee, in its individual capacity (collectively, the "Secured
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Parties"), a security interest in all of its right, title and interest, whether
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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 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 interest, principal, payments or distributions of any
nature or type on any of the above;
(viii) all rights of enforcement against any of the representations
and warranties made by the Beneficiary pursuant to Section 3.02
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of the Trust Agreement;
(ix) all present and future claims, demands, causes of and choses in
action in respect of any or all of the foregoing and all
payments on or under all of the foregoing;
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(x) all accounts, general intangibles, chattel paper, instruments,
documents, goods, money, investment property, deposit accounts,
certificates of deposit, letters of credit, and advices of
credit consisting of, arising from, or relating to any of the
foregoing; and
(xi) all proceeds of the foregoing.
The collateral described above is referred to as the "Collateral."
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The security interest in the Collateral is granted to secure the Notes (and, to
the extent specified in the applicable terms document, 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 or terms document
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 under this Indenture and (iii) compliance
with the provisions of this Indenture, all as provided in this Indenture. This
Indenture shall be deemed to be and hereby 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 and
distributions on the Collateral are allocated for their benefit pursuant to this
Indenture, the applicable Indenture Supplement and the applicable terms
document.
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 by recourse as set forth in Section 711.
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ARTICLE I
Definitions and Other Provisions of General Application
Section 101. Definitions. For all purposes of this Indenture and of
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any supplemental indenture, 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-__ 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
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Supplemental Account, in each case including any sub-Accounts therein.
"Act," when used with respect to any Noteholder, is defined in Section
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104(a).
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"action," when used with respect to any Noteholder, is defined in
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Section 104(a).
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"Adjusted Outstanding Dollar Principal Amount" means at any time with
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respect to any tranche of Notes, the Outstanding Dollar Principal Amount of all
Outstanding Notes of such tranche at such time, less any funds on deposit in the
Principal Funding sub-Account for such tranche at such time and not yet paid to
the Holders of the Notes of such tranche.
"Adverse Effect" means, whenever used in this Indenture with respect
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to any 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, (b) adversely affect the amount of
funds available to be distributed to the Noteholders of any series pursuant to
this Indenture or the timing of such distributions, or (c) adversely affect the
security interest of the Indenture Trustee in the Collateral.
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"Affiliate" means, with respect to any specified Person, any other
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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.
"applicable investment category," with respect to any investment for
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an Account relating to a tranche of Notes in any series, has the meaning
specified in the related Indenture Supplement.
"Authenticating Agent" means any Person authorized by the Indenture
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Trustee to authenticate Notes under Section 814.
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"Authorized Newspaper" means with respect to any tranche of Notes, in
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the newspaper of record specified in the applicable terms document 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 terms document or satisfying the requirements of such exchange.
"Available Funds" means the amount of Available Funds (as defined in
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the Series 2001-__ Supplement) which are payable to the Issuer pursuant to
Section 4.06(a) of the Pooling and Servicing Agreement as supplemented by the
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Series 2001-__ Supplement plus any amounts to be treated as Available Funds
pursuant to Section 403(e).
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"Available Funds Shortfalls," with respect to any Excess Available
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Funds Sharing Series, has the meaning specified in the related Indenture
Supplement.
"Available Principal Amounts" means the amount of Available Investor
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Principal Collections (as defined in the Series 2001-__ Supplement) which are
payable to the Issuer pursuant to Section 4.06(b)(i) or Section 4.06(c)(i) of
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the Pooling and Servicing Agreement as supplemented by the Series 2001-__
Supplement.
"Bearer Note" means a Note in bearer form.
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"Beneficiary" is defined in the Trust Agreement.
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"Business Day" unless otherwise specified in the terms document for
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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
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applicable terms document.
"Collateral" is defined in the Granting Clause.
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"Collateral Certificate" means the Series 2001-__ Certificate, issued
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pursuant to the Pooling and Servicing Agreement and the Series 2001-__
Supplement, as amended, supplemented, restated or otherwise modified from time
to time.
"Collection Account" is defined in Section 402(a).
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"Collections" is defined in Section 401.
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"Commission" means the Securities and Exchange Commission, as from
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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
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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 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Depository" means a U.S. Depository or a Foreign Depository, as the
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case may be.
"Derivative Agreement" means any currency, interest rate or other
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swap, cap, collar, guaranteed investment contract or other derivative agreement.
"Derivative Counterparty" means any party to any Derivative Agreement
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other than the Issuer or the Indenture Trustee.
"Discount Note" means a Note that provides for an amount less than the
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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
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States dollars.
"Early Redemption Event" is defined in Section 1201.
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"Effective Date" means the date on which this Indenture is executed
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and delivered by the parties hereto.
"Entity" means any Person other than an individual or government
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(including any agency or political subdivision thereof).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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the same may be amended from time to time.
"Event of Default" is defined in Section 701.
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"Excess Available Funds Sharing Group" means all Excess Available
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Funds Sharing Series that have the same Excess Available Funds Sharing Group
designation.
"Excess Available Funds Sharing Series" means a series that, pursuant
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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
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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
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(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 tranche
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of Notes, the scheduled due date of any payment of principal on such Notes, as
specified in the related terms document, 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 or terms document, will be the last Business
Day of the current calendar month.
"FDIC" means the Federal Deposit Insurance Corporation or any
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successor thereto.
"Federal Bankruptcy Code" means Title 11 of the United States Code, as
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amended from time to time.
"Fitch" means Fitch, Inc., or any successor thereto.
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"foreign currency" means (a) a currency other than Dollars, or (b)
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denominated in a currency other than Dollars.
"Foreign Depository" means the Person specified in the applicable
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terms document, 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.
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"group" means any one or more series of Notes which are specified as
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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.
7
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.
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"Indenture" or "this Indenture" means this Indenture as originally
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executed or 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.
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"Indenture Supplement" means, with respect to any series of Notes, a
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supplement to this Indenture [complying with the terms of Section ___], executed
in conjunction with the issuance of such Notes, together with any applicable
terms document related to such Indenture Supplement.
"Indenture Trustee" means the Person named as the Indenture Trustee in
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the first paragraph of this Indenture until a successor Indenture Trustee will
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Indenture Trustee" means and includes each Person who is then an
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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
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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
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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
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in the applicable terms document, 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 terms document as the
Initial Dollar Principal Amount thereof.
"Interest-bearing Note" means a Note that bears interest at a stated
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or computed rate on the Stated Principal Amount thereof. A Note may be both an
Interest-bearing Note and a Discount Note.
"Interest Payment Date" means, with respect to any tranche of Notes,
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the scheduled due date of any payment of interest on such Notes, as specified in
the related terms document, 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 or terms document, will be the last Business Day of the
current calendar month or (ii) upon the acceleration of a 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 tranche of Notes, each
Monthly Principal Accrual Date.
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"Internal Revenue Code" means the Internal Revenue Code of 1986, as
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amended from time to time.
"Investor Certificate" is defined in the Pooling and Servicing
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Agreement.
"Investor Certificateholder" is defined in the Pooling and Servicing
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Agreement.
"Investor Interest" is defined in the Series 2001-__ Supplement.
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"Investment Company Act" means the Investment Company Act of 1940, as
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amended.
"Issuer" is defined in the first paragraph of this Indenture.
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"Issuer Authorized Officer" means (a) an authorized signatory of the
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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
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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's Report" means a statement substantially in the form of
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Exhibit C.
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"Issuer Tax Opinion" means, with respect to any action, an Opinion of
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Counsel to the effect that for Federal income tax purposes (a) such action will
not adversely affect the characterization of any Outstanding series, class or
tranche of Notes as debt, (b) such action will not cause a taxable event to
Holders of any such Notes, (c) the Issuer will not be an association (or
publicly traded partnership) taxable as a corporation following such action, and
(d) 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 tranche of Notes, the
-------------------
date specified in the terms document for such Note as the fixed date on which
the principal of such 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.
9
"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.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor
-------
thereto.
"Monthly Computation Statement" means a report substantially in the
-----------------------------
form of Exhibit B.
---------
"Monthly Interest Accrual Date" means, with respect to any tranche of
-----------------------------
Notes:
(a) each Interest Payment Date for such tranche, and
(b) for any month in which no Interest Payment Date for such
tranche occurs, the date in such month corresponding numerically to the next
Interest Payment Date for such tranche of Notes, or as otherwise specified in
the applicable terms document for such tranche of Notes; provided, however, that
-------- -------
(i) if there is no numerically corresponding day in such month,
then the Monthly Interest Accrual Date will be the last Business Day of
such month, and
(ii) if such numerically corresponding day is not a Business Day,
the Monthly Interest Accrual Date will be the next following Business Day
(unless such Business Day would fall in the following month in which case
the Monthly Interest Accrual Date will be the last Business Day of such
earlier month).
"Monthly Period" has the meaning specified in the Series 2001-__
--------------
Supplement.
"Monthly Principal Accrual Date" means with respect to any tranche of
------------------------------
Notes:
(a) for any month in which an Expected Principal Payment Date for
such tranche occurs, the related Expected Principal Payment Date (or if such day
is not a Business Day, the next following Business Day), or as otherwise
specified in the applicable terms document for such tranche of Notes, and
(b) for any month in which no Expected Principal Payment Date for
such tranche occurs, the date in such month corresponding numerically to the
next Expected Principal Payment Date for such tranche of Notes, or as otherwise
specified in the applicable terms document for such tranche of Notes; provided,
--------
however, that
-------
10
(i) if there is no numerically corresponding day in such month, then
the Monthly Principal Accrual Date will be the last Business Day of such
month, and
(ii) if such numerically corresponding day 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 month).
"Nominal Liquidation Amount" means, with respect to any Outstanding
--------------------------
tranche of Notes, an amount determined in accordance with the applicable
Indenture Supplement or terms document. 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 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, who may
------------------
(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:
11
(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 terms document, 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 a
Responsible Officer of the Indenture Trustee knows to be owned by the Issuer or
MBNA upon the Notes 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 tranche of non-Discount Notes, the
aggregate Initial Dollar Principal Amount of the Outstanding Notes of such
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 or terms document, and
(b) with respect to any tranche of Discount Notes, an amount of the
Outstanding Notes of such tranche calculated by reference to the applicable
formula set forth in the applicable terms document, taking into account the
amount and timing of payments of principal made to the Holders of such tranche
or to the applicable Derivative Counterparty and accretions of principal, each
pursuant to the related Indenture Supplement or terms document.
12
"Owner Trustee" means Wilmington Trust Company, in its capacity as
-------------
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 tranche of Notes, the
------------
applicable Principal Payment Date or Interest Payment Date.
"Payment Request" means a request substantially in the form of Exhibit
--------------- -------
A, or such other form as the Issuer may determine.
-
"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:
---------------------
(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 in the applicable investment category of
each Note Rating Agency;
(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 in the applicable
investment category of each Note Rating Agency;
(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 in the applicable
investment category of each Note Rating Agency 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;
13
(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 Payment Date" means, with respect to any tranche of Notes,
----------------------
each Expected Principal Payment Date, or upon the acceleration of a tranche of
Notes following an Event of Default or upon the occurrence of an Early
Redemption Event, or other optional or mandatory redemption of a tranche of
Notes, each Monthly Principal Accrual Date.
"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),
14
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.
"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 terms document.
"Registered Note" means a Note issued in registered form.
---------------
"Required Subordinated Amount" means, with respect to any tranche of a
----------------------------
senior class of Notes, the amount specified in the related Indenture Supplement
or terms document.
"Responsible 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.
"Secured Parties" 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.
15
"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 terms document.
"Series 2001-__ Supplement" means the Series 2001-__ Supplement to the
-------------------------
Pooling and Servicing Agreement, dated as of ________ __, 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 terms document.
"sub-Accounts" means each of the sub-Accounts referred to in Section
------------ -------
4.02(a).
-------
"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).
--------------
"supplemental indenture" means an indenture supplemental to this
----------------------
Indenture executed and delivered pursuant to Article X.
---------
"Targeted Principal Deposit Amount," for each 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 Indenture Supplement, the Issuer Certificate or a supplement 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.
"Transfer Date" is defined in the Pooling and Servicing Agreement.
-------------
"Trust Agreement" means the Trust Agreement, dated as of ______ __,
---------------
2001, between MBNA, as Beneficiary, and Wilmington Trust Company, as Owner
Trustee, as amended, supplemented, restated or supplemented from time to time.
16
"Trust Indenture Act" or "TIA" 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 Nominal Liquidation Amount" means, with respect to
-------------------------------------------
any period, the sum of the Nominal Liquidation Amount 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;
17
(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 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
18
thereof. Where such execution is by an officer of a corporation or a member of a
partnership, on behalf of such corporation or partnership, such certificate or
affidavit will also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
person executing the same, may also be proved in any other manner which the
Indenture Trustee deems sufficient.
(c) (i) The ownership of Registered Notes will be proved by the Note
Register.
(ii) The ownership of Bearer Notes or coupons will be proved by
the production of such Bearer Notes or coupons or by a certificate,
satisfactory to the Issuer, executed 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,
19
(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) or,
--------------
in the case of a request for repayment, as specified in the Note carrying the
right to repayment) 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 Holders of Registered Notes 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 Holders of Registered Notes
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 Holders
of Registered Notes 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 my 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 terms document.
(d) With respect to any tranche of Notes, the applicable Indenture
Supplement or terms document may specify different or additional means of giving
notice to the Holders of the Notes of such tranche.
20
(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
21
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]
22
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, Issuer
Certificate or terms document 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 or an
Issuer Certificate, or established in one or more terms documents. 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:
23
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.
[INDENTURE TRUSTEE NAME],
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 terms document (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 or terms document
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.
24
(c) With respect to Notes issued within the United States, unless
otherwise specified in the applicable terms document, or with respect to Notes
issued outside the United States, if specified in the applicable terms document:
(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. 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 may exchange such Notes for
individual Notes.
25
(iv) 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 paragraph, 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 terms document 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 Notes (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 terms document. 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 terms document for permanent global Bearer Notes or
Registered Notes (the "Permanent Global Notes").
(b) Unless otherwise provided in the applicable terms document,
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 terms document) 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 terms document 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 E-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
26
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 E-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 E-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 terms document:
(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.
27
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]
28
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 or the applicable terms document
for such 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 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 or terms document 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 may also be established in or pursuant to an Indenture
Supplement or an Issuer Certificate or terms document related to the applicable
Indenture Supplement before the issuance of Notes of each such series, class or
tranche, provision for:
(i) the series designation;
(ii) the Stated Principal Amount of the Notes;
29
(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) if such Notes are to be Discount Notes or foreign currency
Notes, 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);
30
(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 terms document 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;
and
(xxi) the controlled accumulation amount, if any, the
controlled amortization amount, if any, or other principal amortization
amount, if any, scheduled for such Notes:
(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 and an Issuer Certificate or terms document 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 or pursuant to an Issuer Certificate or terms document
creating such series, class or tranche. The Notes of each series, class or
tranche will be distinguished from the Notes of each other series, class or
tranche in such manner, reasonably satisfactory to the Indenture Trustee, as the
Issuer may determine.
(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 and Issuer
Certificate or terms document 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
31
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 or terms document.
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 Issuer
Certificate or terms document. 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
32
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(c) 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
33
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 is
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
34
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, the transferor or the
transferee will deliver, at its expense, to the Issuer and the Trustee, an
investment letter from the transferee, substantially in the form of the
investment letter attached hereto as Exhibit D, 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 bona fide 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.
35
(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 Beneficiary and any agent of the Issuer, the Indenture 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 nor any agent of the Issuer, the
Indenture 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 a new series, class or tranche of Notes, so
long as the following conditions precedent are satisfied:
36
(i) on or before the [fourth] 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) 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 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, each Indenture Supplement and each terms
document; 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 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-__ Pay Out Event as defined in the Series 2001-__
Supplement will have occurred and be continuing as of the date of the new
issuance;
37
(vi) in the case of foreign currency Notes, the Issuer will have
appointed one or more Paying Agents in the appropriate countries;
(vii) the conditions specified herein or in Section 311 are
-----------
satisfied; and
(viii) any other conditions specified herein in the applicable
Indenture Supplement or terms document;
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.
Section 311. Specification of Required Subordinated Amount and other
-------------------------------------------------------
Terms with Respect to each Tranche.
----------------------------------
(a) The applicable Indenture Supplement or terms document 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 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]
38
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 pursuant to 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
Noteholders. All collections received from the Master Trust pursuant to Section
-------
5.01 of the Pooling and Servicing Agreement as supplemented by the Series 2001-
----
__ 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 Noteholders. 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 or terms document. Any Supplemental Account will receive
deposits as set forth in the applicable Indenture Supplement or terms document.
(b) All payments to be made from time to time by the Indenture Trustee
to Noteholders out of funds in the Accounts pursuant to this Indenture will be
made by the Indenture Trustee to the Paying Agent not later than 12:00 noon on
the applicable Payment Date or as otherwise provided in Article V or the
---------
applicable Indenture Supplement or terms document but only to the extent of
available funds in the applicable 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 direction of the Issuer in one or more Permitted
Investments. The Issuer may authorize the Indenture Trustee to make specific
investments pursuant to written, electronic, telegraphic or telephonic
(subsequently confirmed in writing) instructions, in such amounts as
39
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 Scheduled 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. 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; 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. Each term used in this Section 403(c) and defined in the UCC
--------------
shall have the meaning set forth in the 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. For purposes of determining the
availability of funds or the balance in the Collection Account for any reason
under this Indenture 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.
40
(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]
41
ARTICLE V
Allocations, Deposits and Payments
Section 501. Allocations of Available Funds. With respect to each
------------------------------
Monthly Period, the Indenture Trustee will allocate all Available Funds pro rata
to each series of Notes based on the Weighted Average Nominal Liquidation Amount
of all Notes Outstanding in such series for such Monthly Period 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 based on the portion of the
Series 2001-_ Monthly Principal Payment (as defined in the Series 2001-_
Supplement) attributable to such series of Notes for application in accordance
with the related Indenture Supplement; provided, however, that if Available
-------- -------
Principal Amounts with respect to such Monthly Period are less then the Series
2001-_ Monthly Principal Payment, then the Indenture Trustee will allocate all
Available Principal Amounts for such Monthly Period to each series of Notes
Outstanding pro rata based on the ratio of the Weighted Average Nominal
Liquidation Amount of such series of Notes for such Monthly Period to the
Weighted Average Nominal Liquidation Amount of all Notes issued by the Issuer
backed by the Collateral Certificate for such Monthly Period.
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 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 and terms document.
[END OF ARTICLE V]
42
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 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
43
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 Adjusted Investor Interest of the Collateral Certificate
to be reduced by an amount equal to the Nominal Liquidation Amount of those
cancelled Notes.
[END OF ARTICLE VI]
44
ARTICLE VII
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 inapplicable to a particular series, class or tranche or it is
specifically deleted or modified in the applicable Indenture Supplement or terms
document creating such series, class or tranche of Notes or in the form of Note
for such series, class or tranche:
(a) a default by the Issuer in the payment of any interest upon any
Note of that series, class or tranche when it 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) a default in the payment by the Issuer of the principal amount of
any Note of that series, class or tranche at its 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 or tranche of Notes being
deemed to be in respect of the Notes of all series, classes or tranche 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 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;
45
(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) any other Event of Default provided in the Indenture Supplement or
terms document under which such series, class or tranche of Notes is issued or
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 will 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 or in the Notes of such
series, class or tranche to the contrary notwithstanding.
(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
or 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 will
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 terms documents
or in 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 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
46
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, or
(c) with respect to any series, class or tranche of Notes that
benefits from a Derivative Agreement to which the Issuer is a party, the Issuer
defaults in any of its obligations under the applicable Derivative Agreement;
and any such default continues for any specified period of grace provided with
respect to such series, class or tranche of Notes, the Issuer will, upon demand
of the Indenture Trustee, pay to it, 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 (subject to Article V),
---------
with interest, to the extent that payment of such interest will be legally
enforceable, upon the overdue principal and upon overdue installments of
interest, at such rate or rates as may be prescribed therefor by the terms of
any such Note 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.
-----------
47
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
48
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;
-----------
(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 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 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
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 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 or has 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
49
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 will 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
reasonable indemnity 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 respective Legal Maturity Dates expressed in such Note and to institute
suit for the enforcement of any such payment, and such right will not be
impaired without the consent of such Holder; provided, however, that
notwithstanding any other provision of this Indenture to the contrary, the
obligation to pay principal of or interest on the Notes or any other amount
payable to any Noteholder will be without recourse to the Issuer, 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.
---------
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
50
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 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 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
51
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]
52
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
53
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 adequate indemnity 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 Holders of
Registered Notes 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 terms document,
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;
54
(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
will have offered to the Indenture Trustee reasonable security or indemnity
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.
55
Section 807. Compensation and Reimbursement, Limit on Compensation,
------------------------------------------------------
Reimbursement and Indemnity.
---------------------------
(a) The Servicer, on behalf of 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
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 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.
(b) The aggregate amount that the Servicer, on behalf of the Issuer, will
be liable for with respect to any of the amounts payable to or for the benefit
of the Indenture Trustee pursuant to this Section or Section 717 or otherwise
-----------
will in no event be greater than the lesser of (i) $_____ per month, and (ii)
0.05% of the aggregate Nominal Liquidation Amounts of the Outstanding Notes as
of the end of the preceding Monthly period. 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.
-----------
(c) 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
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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 will 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 or
tranche for at least six (6) months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Indenture
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Trustee 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 or 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
will 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
will 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 himself 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 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 by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Notes of that series, class or tranche as their names
and addresses appear in the Note Register. 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.
58
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 a supplemental indenture which will contain such
provisions as will 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 will 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 supplemental indenture 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 will 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 will 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 will 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 will be or becomes 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
59
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, if other than the Issuer, 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, if
other than the Issuer, 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 mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Notes of the series, classes or tranches with respect
to which such Authenticating Agent will serve, as their names and addresses
appear in the Note Register. 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.
-----------
60
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.
[NAME OF INDENTURE TRUSTEE], 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 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 Owner
Trustee at least five (5) days prior to the date it is required by law to be
distributed to Noteholders. The Owner Trustee, upon written request, will
furnish the Servicer with all such information known to the Owner 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 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
61
(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 Indenture Trustee shall
-------------------------
such of the Collateral as constitutes the Collateral Certificate __________.
The Indenture Trustee shall hold such of the Collateral as constitutes a
Permitted Investment in accordance with Section 403(c). All other Collateral (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. Each term used in this Section 817 and defined in the UCC shall have the
meaning set forth in the 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 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]
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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) semi-annually, 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 Holders of Notes 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,
excluding from any such list names and addresses received by the Indenture
Trustee in its capacity as Note Registrar.
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 Holders of Notes contained in
the most recent list furnished to the Indenture Trustee as provided in Section
-------
901 and the names and addresses of Holders of Notes 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.
63
If the Indenture Trustee will elect not to afford such applicants
access to such information, the Indenture Trustee will, upon the written request
of such applicants, mail to each Holder of a Note of such series, class or
tranche or to all 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 will 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,
will 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 will
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and will enter an order so declaring, the Indenture
Trustee will mail copies of such material to all Noteholders of such series,
class or tranche or all 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 _____ __.
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) In addition to any reporting requirements of the Issuer under the
TIA, 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;
64
(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 national
securities 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-__ Supplement to be given or taken by the holder of
the Collateral Certificate, any resolution presented at any meeting at which a
majority of 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 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,
65
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. 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 Holders of Registered Notes, 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 or terms document, 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.
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Section 907. Issuer's Report. On each Transfer Date the Issuer will
---------------
deliver to the Indenture Trustee (with a copy to each Note Rating Agency) an
Issuer's Report.
Section 908. Payment Request to Master Trust. From time to time, the
-------------------------------
Issuer will deliver a Payment Request to the Master Trust as necessary to
request the payments required or targeted to be made hereunder.
Section 909. Monthly Computation Statement.
-----------------------------
(a) Promptly after the receipt by the Issuer of the Monthly Servicer's
Certificate under the Series 2001-__ Supplement, the Issuer, in collaboration
with the Servicer of the Master Trust, complete a Monthly Payment Instructions
and Notification and a Monthly Series 2001-__ Certificateholders' Statement and
deliver a copy thereof to the Indenture Trustee.
(b) From time to time, the Issuer will notify the Servicer under the
Series 2001-__ 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-__ Supplement to calculate the Investor Interest and the
Principal Allocation Investor Interest of the Collateral Certificate.
[END OF ARTICLE IX]
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ARTICLE X
Supplemental Indentures; 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, may amend this Indenture or enter into one or more indentures
supplemental hereto, 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, 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 TIA, excluding, however, the provisions referred to in Section 316(a)(2)
of the TIA 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
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(h) to provide for the consolidation of the Master Trust and the
Issuer into a single Entity 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 the Pooling and Servicing Agreement, or one or more
additional Beneficiaries under the Trust Agreement are added to 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 make any other amendment that could not reasonably be expected
to have an Adverse Effect.
No amendment of this Indenture or supplemental indenture for the
purposes identified in clauses (b) or (c) may be entered into if to do so would
adversely affect in any material respect the interests of the Holders of Notes
of any series, class or tranche. Except for supplemental indenture entered into
for purposes identified in clause (e), no supplemental indenture under this
Section may be entered into except upon delivery of a Master Trust Tax Opinion
and an Issuer Tax Opinion and with written confirmation from each applicable
Note Rating Agency that there will be no Ratings Effect.
The Issuer may, without consent of the Noteholders but with prior
notice to each Note Rating Agency, merge with the Master Trust upon (i) written
notice to the Trustee and each Note Rating Agency, (ii) delivery by the Issuer
to the Trustee of an Officer's Certificate to the effect that the Issuer
reasonably believes that such merger will not have an Adverse Effect and is not
reasonably expected to have an Adverse Effect at any time in the future and
(iii) delivery by the Issuer to the Trustee and the Note Rating Agencies of a
Master Trust Tax Opinion and an Issuer Tax Opinion.
Additionally, notwithstanding any provision of this Article X to the
---------
contrary, this Indenture will be amended without the consent of the Indenture
Trustee or any of the Noteholders to add, modify or eliminate such provisions as
may be necessary or advisable in order to enable all or a portion of the Trust
(i) to qualify as, and to permit an election to be made to cause the Trust to be
treated as, a "financial asset securitization investment trust" as described in
the provisions of Section 860L of the Code, (ii) to enable the Trust to qualify
as a partnership for purposes of any state tax laws or otherwise to avoid the
imposition of state or local income or franchise taxes imposed on the Trust's
property or its income and (iii) to prevent assets of the Trust from being
deemed "plan assets" of Noteholders that are employee benefit or other plans
subject to ERISA or Section 4975 of the Internal Revenue Code; provided,
--------
however, that (i) the Issuer shall deliver to the Indenture Trustee and the
-------
Owner Trustee an Officer's Certitificate 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
69
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. Supplemental Indentures with Consent of Noteholders. With
---------------------------------------------------
prior notice to each applicable Note Rating Agency and the consent of the
Majority Holders of each series, class or tranche affected by such amendment of
this Indenture or supplemental indenture or indentures, by Act of said Holders
delivered to the Issuer and the Indenture Trustee, the Issuer and the Indenture
Trustee may enter into an amendment of this Indenture or indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Notes of each such
series, class or tranche under this Indenture; provided, however, that no such
-------- -------
amendment or supplemental indenture will, without the consent of the Holder of
each Outstanding Note affected thereby:
(a) change the scheduled payment date of any payment of interest on any
Note, or change an Expected Principal Payment Date or Legal Maturity Date of any
Note;
(b) reduce the Stated Principal Amount of, or the interest rate on any
Note, or change the method of computing the Outstanding Dollar Principal Amount,
the Adjusted Outstanding Dollar Principal Amount, or the Nominal Liquidation
Amount in a manner that is adverse to the Holder of any Note;
(c) reduce the amount of a Discount Note payable upon the occurrence of an
Early Redemption Event or other optional or mandatory redemption or upon the
acceleration of its Legal Maturity Date;
(d) impair the right to institute suit for the enforcement of any payment
on any Note;
(e) reduce the percentage in Outstanding Dollar Principal Amount of the
Outstanding Notes of any series, class or tranche, the consent of whose Holders
is required for any such supplemental indenture, or the consent of whose Holders
is required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences, provided for in
this Indenture;
(f) modify any of the provisions of this Section or Section 718, except to
-----------
increase any such percentage or to provide that certain 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 terms document;
70
(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 a supplemental indenture 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. No amendment or supplemental indenture
under this Section may be entered into except upon delivery of a Master Trust
Tax Opinion and an Issuer Tax Opinion and with prior notice to each applicable
Note Rating Agency.
It will not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed amendment or supplemental indenture,
but it will be sufficient if such Act will approve the substance thereof.
Section 1003. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any amendment of this Indenture or
supplemental indenture 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
supplemental indenture 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
supplemental indenture entered into under Section 1001(d) or 1001(f)) be
--------------- -------
obligated to, enter into any such supplemental indenture which affects the
Indenture Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 1004. Effect of Supplemental Indentures. Upon the execution of
---------------------------------
any amendment of this Indenture or supplemental indenture 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 supplemental indenture 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. Conformity with Trust Indenture Act. Every amendment of
-----------------------------------
this Indenture or supplemental indenture executed pursuant to this Article will
conform to the requirements of the TIA as then in effect.
Section 1006. Reference in Notes to Supplemental Indentures. Notes
---------------------------------------------
authenticated and delivered after the execution of any amendment of this
Indenture or supplemental indenture 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
supplemental indenture. If the Issuer will so determine, new Notes so modified
as to conform, in the opinion of the Indenture Trustee and the Issuer, to any
such
71
amendment or supplemental indenture may be prepared and executed by the Issuer
and authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes.
Section 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.
Section 1008. Amendments to the Trust Agreement.
---------------------------------
(a) 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
adversely affect the interests of the Noteholders in any material respect and
the Note Rating Agencies confirm in writing that the amendment will not cause a
Ratings Effect. Additionally, notwithstanding any provision of this Article X
---------
or of the Trust Agreement to the contrary, the Trust Agreement will be amended
without the consent of the Indenture Trustee or any of the Noteholders to add,
modify or eliminate such provisions as may be necessary or advisable in order to
enable all or a portion of the Trust (i) to qualify as, and to permit an
election to be made to cause the Trust to be treated as, a "financial asset
securitization investment trust" as described in the provisions of Section 860L
of the Code, (ii) to enable the Trust to qualify as a partnership for purposes
of any state tax laws or otherwise to avoid the imposition of state or local
income or franchise taxes imposed on the Trust's property or its income and
(iii) to prevent assets of the Trust from being deemed "plan assets" of
Noteholders that are employee benefit or other plans subject to ERISA or Section
4975 of the Internal Revenue Code; provided, however, that (i) the Issuer shall
-------- -------
deliver to the Indenture Trustee and the Owner Trustee an Officer's
Certitificate 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, (ii) the Note Rating Agencies have
provided written confirmation that such amendment will not have a Ratings
Effect, and (iii) such
72
amendment does not affect the rights, benefits, protections, privileges,
immunities, duties or obligations of the Owner Trustee under the Trust
Agreement.
(b) With written confirmation from each applicable Note Rating Agency
that there will be no Ratings Effect and the consent of the Holders of not less
than 66 2/3% 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. 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 as provided in
Section 106 of such proposed amendment, modification, waiver or supplement, to
-----------
each Noteholder as of such date that is entitled to vote on a consent to such
matter. 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) how to vote the
Collateral Certificate or the Noteholders of a series or tranche if a vote has
been called for with respect thereto; provided, that such a request for
--------
Noteholder direction will have been made, 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]
73
ARTICLE XI
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 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 supplement thereto 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 supplemental
indenture 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; and
74
(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 mail to the Holders of the Notes as to which the money to be repaid was
held in trust, as their names and addresses appear in the Note Register, 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 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.
75
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 published.
Section 1104. Statement as to Compliance. The Issuer will deliver to
--------------------------
the Indenture Trustee, within 120 days after the end of each fiscal year,
beginning in 2002, an Officer's Certificate stating that:
(a) a review of the activities of the Issuer during such year and of
the Issuer's performance under this Indenture and under the terms of the Notes
has been made under his supervision; and
(b) to the best of his knowledge, based on such review, the Issuer has
complied with all conditions and covenants under this Indenture through such
year, or, if there has been a default in the fulfillment of any such obligation
(without regard to any period of grace or requirement of notice), specifying
each such default known to him 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);
76
(b) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien in favor of the Secured Parties 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 Secured
Parties 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 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 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
77
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 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, without the consent of the Holders of all the Outstanding
Notes. If any such amendment, modification, supplement or waiver shall be so
consented to by the Indenture Trustee and such Noteholders, the Issuer agrees,
promptly following a request by the Indenture Trustee to do so, to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as the Indenture Trustee may deem 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 supplemental hereto, 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 supplemental indenture 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 Exchange Act), and (iii) such supplemental indenture is duly
authorized, executed and delivered and is valid, binding and enforceable
against such person;
78
(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.
(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 supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as provided
herein, (C) expressly agree by means of such supplemental indenture that
all right, title and interest so conveyed or transferred shall be subject
and subordinate to the rights of Holders of the Notes, (D) unless otherwise
provided in such supplemental indenture, 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 supplemental indenture that such Person
(or if a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person) required by
the 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 consolidation or merger;
(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
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(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 supplemental indenture 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 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 or terms document.
[END OF ARTICLE XI]
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ARTICLE XII
Early Redemption of Notes
Section 1201. Applicability of Article. 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. The following are "Early Redemption Events":
(a) the occurrence of the final or only Expected Principal Payment
Date of any Note;
(b) the occurrence of any Pay Out Event as defined in the Pooling and
Servicing Agreement or any Series 2001-__ Pay Out Event as described in the
Series 2001-__ Supplement;
(c) with respect to any series, class or tranche of Notes, any event
specified in the Indenture Supplement or terms document for such series, class
or tranche as applying to such series, class or tranche; or
(d) The Issuer becomes an investment company within the meaning of the
Investment Company Act.
Section 1202. Optional Repurchase. Unless otherwise provided in the
-------------------
applicable Indenture Supplement or terms document for a tranche of Notes, the
Issuer has the right, but not the obligation, to redeem a 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 tranche is reduced to less than 5% of its
Initial Dollar Principal Amount; provided, however, that if such tranche of
-------- -------
Notes is of a subordinated class, the Issuer 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. Notes of that series with less than the
applicable Required Subordinated Amount. If the Issuer elects to redeem a
tranche of Notes, it will notify the Holders of such redemption at least thirty
(30) days prior to the redemption date. The redemption price of a 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 and 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. 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 and terms document.
81
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 and the related Indenture Supplement and (c)
---------
the series, class or tranche of Notes to be redeemed pursuant to this Article.
[END OF ARTICLE XII]
82
ARTICLE XIII
Collateral
Section 1301. Recording, Etc. 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:
(a) grant a Security Interest more effectively in all or any portion of the
Collateral;
(b) maintain or preserve the Security Interest (and the priority thereof)
created by this Indenture or carry out more effectively the purposes hereof;
(c) perfect, publish notice of or protect the validity of any grant made or
to be made by this Indenture;
(d) enforce the Collateral Certificate, the Derivative Agreements and each
other instrument or agreement included in the Collateral;
(e) 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
(f) pay all taxes or assessments levied or assessed upon the Collateral
when due.
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. 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 Secured Parties 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,
83
without limitation, the Issuer and each other obligor on the Notes will cause
TIA (S) 314(d) relating to the release of property or securities from the liens
hereof to be complied with. Any certificate or opinion required by TIA (S)
314(d) may be made by an officer of the appropriate obligor, except in cases in
which TIA (S) 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 their interests 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 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 will 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 will 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 will 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 will 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 will 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 will be entitled to hire experts, consultants,
agents and attorneys to advise the Indenture Trustee on the manner in which the
Indenture Trustee, as the case may be, should respond to such request or
84
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 Secured Parties.
(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 create, continue,
perfect and maintain
85
the first priority 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 effective.
(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 [ ] 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 XXXX]
00
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 Owner Trustee not individually
or personally but solely as Owner Trustee, in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by the
Owner Trustee but is made and intended for the purpose for binding only the
Issuer, (iii) nothing herein contained will be construed as creating any
liability on the Owner Trustee individually or personally, to perform any
covenant of the Issuer either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties to this Indenture and
by any Person claiming by, through or under them and (iv) under no circumstances
will the Owner Trustee be personally liable for the payment of any indebtedness
or expenses of the Issuer or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Issuer under this Indenture or any related documents.
(b) No Indenture Trustee or Owner Trustee or 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.
87
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 will 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
consent of the Indenture Trustee, may enter into any agreement with any Holder
of a Note providing for a method of payment, 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 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 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 (and any
excess shall be paid in accordance with the terms of any Enhancement Agreement).
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
88
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 Series
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, 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.
[END OF ARTICLE XIV]
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
MBNA CREDIT CARD MASTER NOTE TRUST,
by Wilmington Trust Company, as Owner Trustee and not
in its individual capacity
By: __________________________________________________
Name:
Title:
Attest:
THE BANK OF NEW YORK, as Indenture Trustee
and not in its individual capacity
By: __________________________________________________
Name:
Title:
Attest:
Acknowledged and Accepted:
MBNA AMERICA BANK,
NATIONAL ASSOCIATION,
in its capacity as servicer under
the Pooling and Servicing Agreement
By: _______________________________
Name:
Title:
90
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
Wilmington Trust Company, acting not in its individual capacity but solely as
Owner Trustee 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 Owner Trustee; that the seal affixed to that instrument is
such corporate seal; that it was affixed by authority of the board of directors
of the corporation; and that he signed his name thereto by like authority.
_____________________________
Name
_____________________________
[Notarial Seal]
00
XXXXX XX XXX XXXX )
)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]
