Exhibit 10.42
NORDSTROM CREDIT CARD MASTER NOTE TRUST,
as Issuer,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee
MASTER INDENTURE
Dated as of April 1, 2002
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939 AND INDENTURE PROVISIONS*
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1)......................................................... 6.11
(a)(2)........................................................ 6.11
(a)(3)........................................................ 6.10
(a)(4)........................................................ Not Applicable
(a)(5)........................................................ 6.11
(b)........................................................... 6.08, 6.11
(c)........................................................... Not Applicable
311(a)............................................................ 6.12
(b)........................................................... 6.12
(c)........................................................... Not Applicable
312(a)............................................................ 7.01, 7.02(a)
(b)........................................................... 7.02(b)
(c)........................................................... 7.02(c)
313(a)............................................................ 7.04
(b)........................................................... 7.04
(c)........................................................... 7.03, 7.04
(d)........................................................... 7.04
314(a)............................................................ 3.09, 7.03(a)
(b)........................................................... 3.06
(c)(1)........................................................ 2.11, 8.09(c), 12.01(a)
(c)(2)........................................................ 2.11, 8.09(c), 12.01(a)
(c)(3)........................................................ 2.11, 8.09(c), 12.01(a)
(d)(1)........................................................ 2.11, 8.09(c), 12.01(b)
(d)(2)........................................................ Not Applicable
(d)(3)........................................................ Not Applicable
(e)........................................................... 12.01(a)
315(a)............................................................ 6.01(b)
(b)........................................................... 6.02
(c)........................................................... 6.01(c)
(d)........................................................... 6.01(d)
(d)(1)........................................................ 6.01(d)
(d)(2)........................................................ 6.01(d)
(d)(3)........................................................ 6.01(d)
(e)........................................................... 5.14
316(a)(1)(A)...................................................... 5.12
316(a)(1)(B)...................................................... 5.13
316(a)(2)......................................................... Not Applicable
316(b)............................................................ 5.08
317(a)(1)......................................................... 5.04
317(a)(2)......................................................... 5.04(d)
317(b)............................................................ 5.04(a)
318(a)............................................................ 12.07
--------
* This reconciliation and tie shall not, for any purpose, be deemed to be
part of the within indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.................................................................................. 2
Section 1.02. Other Definitional Provisions................................................................ 16
ARTICLE TWO
THE NOTES
Section 2.01. Form Generally............................................................................... 18
Section 2.02. Denominations................................................................................ 18
Section 2.03. Execution, Authentication and Delivery....................................................... 18
Section 2.04. Authenticating Agent......................................................................... 19
Section 2.05. Registration of and Limitations on Transfer and Exchange of Notes............................ 20
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes................................................... 21
Section 2.07. Persons Deemed Owners........................................................................ 22
Section 2.08. Appointment of Paying Agent.................................................................. 22
Section 2.09. Access to List of Noteholders' Names and Addresses........................................... 23
Section 2.10. Cancellation................................................................................. 23
Section 2.11. Release of Collateral........................................................................ 24
Section 2.12. New Issuances................................................................................ 24
Section 2.13. Book-Entry Notes............................................................................. 25
Section 2.14. Notices to Clearing Agency or Foreign Clearing Agency........................................ 26
Section 2.15. Definitive Notes............................................................................. 27
Section 2.16. Global Notes................................................................................. 27
Section 2.17. Meetings of Noteholders...................................................................... 27
Section 2.18. Uncertificated Classes....................................................................... 28
ARTICLE THREE
COVENANTS OF ISSUER
Section 3.01. Payment of Principal and Interest............................................................ 29
Section 3.02. Maintenance of Office or Agency.............................................................. 29
Section 3.03. Money for Note Payments to be Held in Trust.................................................. 29
Section 3.04. Existence.................................................................................... 30
Section 3.05. Protection of Trust.......................................................................... 30
Section 3.06. Opinions as to Collateral.................................................................... 31
Section 3.07. Performance of Obligations; Servicing of Receivables......................................... 32
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Section 3.08. Negative Covenants........................................................................... 33
Section 3.09. Statements as to Compliance.................................................................. 34
Section 3.10. Issuer May Consolidate, Etc., Only on Certain Terms.......................................... 34
Section 3.11. Successor Substituted........................................................................ 36
Section 3.12. No Other Business............................................................................ 36
Section 3.13. No Borrowing................................................................................. 36
Section 3.14. Servicer's Obligations....................................................................... 36
Section 3.15. Guarantees, Loans, Advances and Other Liabilities............................................ 36
Section 3.16. Capital Expenditures......................................................................... 37
Section 3.17. Removal of Administrator..................................................................... 37
Section 3.18. Restricted Payments.......................................................................... 37
Section 3.19. Notice of Events of Default.................................................................. 37
Section 3.20. Further Instruments and Acts................................................................. 37
Section 3.21. Representations and Warranties as to the Security Interest of the Indenture Trustee in the
Receivables............................................................................. 37
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of this Indenture................................................. 39
Section 4.02. Application of Trust Money................................................................... 40
ARTICLE FIVE
PAY OUT EVENTS, DEFAULTS AND REMEDIES
Section 5.01. Pay Out Events............................................................................... 41
Section 5.02. Events of Default............................................................................ 41
Section 5.03. Acceleration of Maturity; Rescission and Annulment........................................... 42
Section 5.04. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.................... 43
Section 5.05. Remedies; Priorities......................................................................... 45
Section 5.06. Optional Preservation of the Collateral...................................................... 47
Section 5.07. Limitation on Suits.......................................................................... 47
Section 5.08. Unconditional Rights of Noteholders to Receive Principal and Interest........................ 48
Section 5.09. Restoration of Rights and Remedies........................................................... 48
Section 5.10. Rights and Remedies Cumulative............................................................... 48
Section 5.11. Delay or Omission Not Waiver................................................................. 49
Section 5.12. Rights of Noteholders to Direct Indenture Trustee............................................ 49
Section 5.13. Waiver of Past Defaults...................................................................... 49
Section 5.14. Undertaking for Costs........................................................................ 50
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Section 5.15. Waiver of Stay or Extension Laws............................................................. 50
Section 5.16. Sale of Receivables.......................................................................... 50
Section 5.17. Action on Notes.............................................................................. 51
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01. Duties of the Indenture Trustee.............................................................. 52
Section 6.02. Notice of Pay Out Event or Event of Default.................................................. 54
Section 6.03. Rights of Indenture Trustee.................................................................. 54
Section 6.04. Not Responsible for Recitals or Issuance of Notes............................................ 55
Section 6.05. May Hold Notes............................................................................... 55
Section 6.06. Money Held in Trust.......................................................................... 55
Section 6.07. Compensation, Reimbursement and Indemnification.............................................. 55
Section 6.08. Replacement of Indenture Trustee............................................................. 56
Section 6.09. Successor Indenture Trustee by Merger........................................................ 57
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee............................ 57
Section 6.11. Eligibility; Disqualification................................................................ 59
Section 6.12. Preferential Collection of Claims Against.................................................... 59
Section 6.13. Tax Returns.................................................................................. 59
Section 6.14. Representations and Covenants of the Indenture Trustee....................................... 59
Section 6.15. Custody of the Collateral.................................................................... 60
ARTICLE SEVEN
NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders....................... 61
Section 7.02. Preservation of Information; Communications to Noteholders................................... 61
Section 7.03. Reports by Issuer............................................................................ 61
Section 7.04. Reports by Indenture Trustee................................................................. 62
ARTICLE EIGHT
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 8.01. Collection of Money.......................................................................... 63
Section 8.02. Rights of Noteholders........................................................................ 63
Section 8.03. Establishment of Collection Account and Special Funding Account.............................. 63
Section 8.04. Collections and Allocations.................................................................. 65
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Section 8.05. Shared Principal Collections................................................................. 66
Section 8.06. Additional Withdrawals from the Collection Account........................................... 67
Section 8.07. Allocation of Collateral to Series or Groups................................................. 67
Section 8.08. Excess Finance Charge Collections............................................................ 67
Section 8.09. Release of Collateral; Eligible Loan Documents............................................... 68
Section 8.10. Opinion of Counsel........................................................................... 68
ARTICLE NINE
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
Section 9.01. Distributions and Reports to Noteholders..................................................... 70
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of Noteholders...................................... 70
Section 10.02. Supplemental Indentures with Consent of Noteholders......................................... 71
Section 10.03. Execution of Supplemental Indentures........................................................ 73
Section 10.04. Effect of Supplemental Indenture............................................................ 73
Section 10.05. Conformity With Trust Indenture Act......................................................... 73
Section 10.06. Reference in Notes to Supplemental Indentures............................................... 73
ARTICLE ELEVEN
TERMINATION
Section 11.01. Termination of Trust........................................................................ 74
Section 11.02. Final Distribution.......................................................................... 74
Section 11.03. Termination Distributions................................................................... 75
Section 11.04. Defeasance.................................................................................. 75
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Compliance Certificates and Opinions, etc................................................... 77
Section 12.02. Form of Documents Delivered to Indenture Trustee............................................ 78
Section 12.03. Acts of Noteholders......................................................................... 79
Section 12.04. Notices, Etc. to Indenture Trustee and Issuer............................................... 80
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Section 12.05. Notices to Noteholders; Waiver.............................................................. 80
Section 12.06. Alternate Payment and Notice Provisions..................................................... 81
Section 12.07. Conflict with Trust Indenture Act........................................................... 81
Section 12.08. Effect of Headings and Table of Contents.................................................... 81
Section 12.09. Successors and Assigns...................................................................... 81
Section 12.10. Severability................................................................................ 81
Section 12.11. Benefits of Indenture....................................................................... 81
Section 12.12. Legal Holidays.............................................................................. 81
Section 12.13. GOVERNING LAW............................................................................... 81
Section 12.14. Counterparts................................................................................ 82
Section 12.15. Trust Obligations........................................................................... 82
Section 12.16. No Petition................................................................................. 82
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MASTER INDENTURE
This MASTER INDENTURE, dated as of April 1, 2002, is between Nordstrom
Credit Card Master Note Trust, a business trust organized under the laws of the
State of Delaware (herein, together with its permitted successors and assigns,
the "Issuer"), and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, a national
banking association, as indenture trustee (herein, together with its successors
in the trusts hereunder, the "Indenture Trustee").
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this
Master Indenture to provide for the issue of its asset backed notes (the
"Notes") as provided in this Master Indenture. All covenants and agreements made
by the Issuer herein are for the benefit and security of the Noteholders. The
Issuer is entering into this Master Indenture, and the Indenture Trustee is
accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
Simultaneously with the delivery of this Master Indenture, the Issuer
is entering into the Transfer and Servicing Agreement with Nordstrom Credit Card
Receivables LLC, a Delaware limited liability company, as Transferor (the
"Transferor"), Nordstrom fsb, a federal banking association, as Servicer (the
"Servicer"), and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Indenture
Trustee (the "Indenture Trustee") pursuant to which (a) the Transferor will
convey to the Issuer all of its right, title and interest in, to and under the
Receivables and certain related assets and (b) the Servicer will agree to
service the Receivables and make collections thereon on behalf of the
Noteholders.
Under the Transfer and Servicing Agreement, Receivables arising in
Accounts from time to time will be conveyed thereunder to the Issuer.
GRANTING CLAUSES
The Issuer hereby Grants to the Indenture Trustee, for the benefit of
the Holders of the Notes and any Series Enhancers, all of the Issuer's right,
title and interest, whether now owned or hereafter acquired, in, to and under
(i) the Receivables existing at the close of business on the Initial Cut-Off
Date, in the case of Receivables arising in the Initial Accounts, and on each
Addition Cut-Off Date, in the case of Receivables arising in the Additional
Accounts, and in each case thereafter created from time to time until the
termination of the Issuer, (ii) Collections and all Interchange and Recoveries
allocable to the Issuer as provided in the Transfer and Servicing Agreement and
all monies due or to become due and all amounts received or receivable with
respect thereto (including proceeds of the reassignment of the Receivables to
the Transferor pursuant to Sections 2.05(a) or 2.06 of the Transfer and
Servicing Agreement), (iii) all Eligible Investments and all monies, investment
properties, instruments and other property credited to the Collection Account,
the Series Accounts and the Special Funding Account (including any subaccount of
any such account), and all interest, dividends, earnings, income and other
distributions from time to time received, receivable or otherwise distributed or
distributable thereto or in respect thereof (including any accrued discount
realized on liquidation of any investment purchased at a discount), (iv) all
rights, remedies, powers, privileges and
claims of the Issuer under or with respect to any Series Enhancement, the Trust
Agreement or the Transfer and Servicing Agreement (whether arising pursuant to
the terms of such Enhancement Agreement, the Trust Agreement or the Transfer and
Servicing Agreement or otherwise available to the Issuer at law or in equity),
including the rights of the Issuer to enforce such Enhancement Agreement, the
Trust Agreement or the Transfer and Servicing Agreement, and to give or withhold
any and all consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to such Series Enhancement, the Trust Agreement or
the Transfer and Servicing Agreement to the same extent as the Issuer could but
for the assignment and security interest granted to the Indenture Trustee for
the benefit of the Noteholders, (v) the property conveyed to the Issuer under
any Participation Interest Supplement and the right to receive Recoveries
attributed to cardholder charges for merchandise and services in the Accounts,
(vi) the rights of the Seller under the Receivables Purchase Agreements, (vii)
all money, accounts, general intangibles, chattel paper, instruments, documents,
goods, investment property, deposit accounts, certificates of deposit, letters
of credit and advices of credit consisting of, arising from, or related to the
foregoing, (viii) all proceeds of any derivative contracts between the Trust and
a counterparty, as described in an Indenture Supplement, (ix) all Insurance
Proceeds relating to the Receivables, (x) any rights of the Transferor under the
Receivables Purchase Agreements, (xi) all other property of the Issuer, (xii)
all present and future claims, demands, causes and choses in action in respect
of any or all of the foregoing and (xiii) any and all proceeds of the foregoing;
in each case, including any rights of the Owner trustee and the Trust pursuant
to the Transaction Documents, but excluding the Transferor Interest and all
amounts distributable to the holders of any Certificates pursuant to the terms
of any Transaction Document (collectively, the "Collateral").
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal of, interest
on and other amounts with respect to, the Notes is limited by recourse only to
the Collateral.
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Master Indenture, the
following words and phrases shall have the following meanings:
"Account Owner" has the meaning set forth in the Transfer and Servicing
Agreement.
"Accounts" has the meaning set forth in the Transfer and Servicing
Agreement.
"Accumulation Period" means, with respect to any Series, or any Class
within a Series, a period following the Revolving Period during which
Collections of Principal Receivables are accumulated in an account for the
benefit of the Noteholders of such Series or Class, which shall be the
controlled accumulation period, the principal accumulation period, the early
accumulation period, the optional accumulation period, the limited accumulation
period or other accumulation period, in each case as defined with respect to
such Series or Class in the related Indenture Supplement.
2
"Act" has the meaning set forth in Section 12.03(a).
"Addition Cut-Off Date" has the meaning set forth in the Transfer and
Servicing Agreement.
"Additional Accounts" has the meaning set forth in the Transfer and
Servicing Agreement.
"Adjusted Invested Amount" has the meaning set forth in the related
Indenture Supplement.
"Administration Agreement" means the Administration Agreement, dated as
of April 1, 2002, between the Issuer and the Administrator, as the same may be
amended, supplemented or otherwise modified from time to time.
"Administrator" means Nordstrom fsb, or its successors and permitted
assigns, or any successor Administrator under the Administration Agreement.
"Adverse Effect" has the meaning set forth in the Transfer and
Servicing Agreement.
"Affiliate" has the meaning set forth in the Transfer and Servicing
Agreement.
"Aggregate Investor Percentage" means, with respect to Principal
Receivables, Finance Charge Receivables and Defaulted Receivables, as the case
may be, as of any date of determination, the sum of such series percentages of
all Series of Notes issued and outstanding on such date of determination;
provided, however, that the Aggregate Investor Percentage shall not exceed 100%.
"Amortization Period" means, with respect to any Series, or any Class
within a Series, a period following the Revolving Period during which
Collections of Principal Receivables are distributed to the related Noteholders
of such Series or Class, which shall be the controlled amortization period, the
principal amortization period, the optional amortization period, the limited
amortization period, the early amortization period or other amortization period,
in each case as defined with respect to such Series in the related Indenture
Supplement.
"Applicants" has the meaning set forth in Section 2.09(a).
"Authorized Officer" means, with respect to:
(i) the Issuer, any officer of the Owner Trustee who is
authorized to act for the Owner Trustee in matters relating to the
Issuer and any Vice President or more senior officer of the
Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator
pursuant to the Administration Agreement and who is identified on the
list of Authorized Officers (containing the specimen signatures of such
officers) delivered by the Administrator to the Indenture Trustee on
the Closing Date (as such list may be modified or supplemented from
time to time thereafter);
3
(ii) the Transferor, any officer of the Transferor who is
authorized to act for the Transferor in matters relating to the
Transferor and who is identified on the list of Authorized Officers,
containing the specimen signature of each such Person, delivered by the
Transferor to the Indenture Trustee on the Closing Date (as such list
may be modified or supplemented from time to time thereafter);
(iii) the Servicer, any officer of the Servicer who is
authorized to act for the Servicer in matters relating to the Servicer
and who is identified on the list of Authorized Officers, containing
the specimen signature of each such Person, delivered by the Servicer
to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter); and
(iv) the Seller, any officer of the Seller who is authorized
to act for the Seller in matters relating to the Seller and who is
identified on the list of Authorized Officers, containing the specimen
signature of each such Person, delivered by the Seller to the Indenture
Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
"Bank" means Nordstrom fsb and its successors and permitted assigns.
"Bearer Notes" means any Series or Class of Notes, together with the
Indenture Trustee's certificate of authentication related thereto, issued in
bearer form.
"Beneficial Owner" means, with respect to a Book-Entry Note, the Person
who is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency or Foreign Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency or Foreign Clearing Agency
(directly as a Clearing Agency Participant or as an Indirect Participant, in
accordance with the rules of such Clearing Agency or Foreign Clearing Agency).
"Book-Entry Notes" means beneficial interests in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing Agency
or Foreign Clearing Agency as described in Section 2.13.
"Business Day" has the meaning set forth in the Transfer and Servicing
Agreement.
"Certificate of Trust" has the meaning set forth in the Trust
Agreement.
"Certificates" has the meaning set forth in the Trust Agreement.
"Class" means, with respect to any Series, any one of the classes of
Notes of that Series.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act, and serving as clearing
agency for a Series or Class of Book-Entry Notes.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
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"Clearstream" means Clearstream Banking, societe anonyme, a
professional depository incorporated under the laws of Luxembourg, and its
successors.
"Closing Date" means, with respect to any Series, the closing date
specified in the related Indenture Supplement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in the Granting Clause of this
Master Indenture.
"Collection Account" has the meaning set forth in Section 8.03.
"Collections" has the meaning set forth in the Transfer and Servicing
Agreement.
"Commission" means the Securities and Exchange Commission, and its
successors.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at date of the execution of this Master Indenture is
located at MAC ▇▇▇▇▇-▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services-Asset Backed
Administration, or at such other address as the Indenture Trustee may designate
from time to time by notice to the Noteholders and the Transferor, or the
principal corporate trust office of any successor Indenture Trustee (the address
of which the successor Indenture Trustee will notify the Noteholders and the
Transferor).
"Coupon" means, collectively, the interest coupons attached to Bearer
Notes.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Defaulted Receivables" has the meaning set forth in the Transfer and
Servicing Agreement.
"Defeasance" has the meaning set forth in Section 11.04(a).
"Defeased Series" has the meaning set forth in Section 11.04(a).
"Definitive Notes" means Notes issued in definitive, fully registered
form.
"Deposit Date" means each day on which the Servicer deposits
Collections in the Collection Account.
"Determination Date" means, unless otherwise specified in an Indenture
Supplement for a particular Series, the fifth Business Day preceding each
Distribution Date.
"Discount Percentage" has the meaning set forth in the Transfer and
Servicing Agreement.
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"Distribution Date" with respect to any Series, has the meaning set
forth in the applicable Indenture Supplement.
"Dollars", "$" or "U.S. $" means United States dollars.
"DTC" means The Depository Trust Company, and its successors.
"Eligible Institution" means a depository institution organized under
the laws of the United States or any State thereof (or any domestic branch of a
foreign bank) which at all times (i) has either (a) a long-term unsecured debt
rating of Aa3 or better by Moody's or (b) a certificate of deposit rating of
Prime-1 by Moody's, (ii) has either a long-term unsecured debt rating of AA- or
better or a certificate of deposit rating of A-1+ by Standard & Poor's and (iii)
is a member of the FDIC. Notwithstanding the previous sentence, any institution
the appointment of which satisfies the Rating Agency Condition shall be
considered an Eligible Institution. If so qualified, the Indenture Trustee may
be considered an Eligible Institution for the purposes of this definition.
"Eligible Investments" means, as of any date of determination, the
following instruments, investment property, or other property:
(i) direct obligations of, or obligations fully guaranteed as
to timely payment by, the United States;
(ii) demand deposits, time deposits or certificates of deposit
(having original maturities of no more than 365 days) of depository
institutions or trust companies incorporated under the laws of the
United States or any State thereof (or domestic branches of foreign
banks) and subject to supervision and examination by federal or state
banking or depository institution authorities; provided that at the
time of the Trust's investment or contractual commitment to invest
therein, the debt rating of such depository institution or trust
company shall be the highest short-term debt rating of each Rating
Agency, or with respect to ratings issued by Moody's, have a long-term
debt rating of at least A2 and/or a short-term debt rating of Prime-1;
(iii) commercial paper or other short-term obligations (having
original or remaining maturities of no more than 30 days) (including
short-term obligations of Nordstrom, Inc. and the Bank) having, at the
time of investment or contractual commitment to invest therein, the
highest credit rating for such obligation issued by Standard & Poor's
or be a long-term debt rating of at least A2 and/or a short-term debt
rating of Prime-1 issued by Moody's;
(iv) demand deposits, time deposits and certificates of
deposit which (a) are scheduled to mature on a date occurring no later
than the Transfer Date in the Monthly Period immediately succeeding the
Monthly Period in which such investment is made, (b) are fully insured
by the FDIC and (c) have, at the time of the Trust's investment
therein, a rating in the highest rating category of each Rating Agency;
6
(v) bankers' acceptances (having original maturities of no
more than 365 days) issued by any depository institution or trust
company referred to in clause (ii) above;
(vi) money market funds having, at the time of the Trust's
investment therein, a rating in the highest rating category of each
Rating Agency (including funds for which the Indenture Trustee or any
of its Affiliates is investment manager or advisor);
(vii) time deposits (other than those referred to in clause
(iv) above), with a Person the commercial paper of which has a credit
rating satisfactory to each Rating Agency and which are scheduled to
mature on a date occurring no later than the Transfer Date in the
Monthly Period immediately succeeding the Monthly Period in which such
investment is made; or
(viii) any other relatively risk-free investments having a
specified maturity and bearing interest or sold at a discount that
satisfies Rating Agency Condition.
"Eligible Servicer" has the meaning set forth in the Transfer and
Servicing Agreement.
"Enhancement Agreement" means any agreement, instrument or document
governing the terms of any Series Enhancement or pursuant to which any Series
Enhancement is issued or outstanding.
"Euroclear Operator" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System.
"Event of Default" has the meaning set forth in Section 5.02.
"Excess Allocation Series" means a Series that, pursuant to the related
Indenture Supplement, is entitled to receive certain excess Collections of
Finance Charge Receivables, as more specifically set forth in such Indenture
Supplement. If so specified in the Indenture Supplement for a Group of Series,
each such Series may be an Excess Allocation Series only for the other Series in
such Group.
"Excess Finance Charge Collections" means, with respect to a
Distribution Date, the aggregate amount for all outstanding Series of
Collections of Finance Charge Receivables which the related Supplements specify
are to be treated as "Excess Finance Charge Collections" for such Distribution
Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FDIC" has the meaning specified in the Transfer and Servicing
Agreement.
"Fitch" has the meaning set forth in the Transfer and Servicing
Agreement
"Finance Charge Receivables" has the meaning set forth in the Transfer
and Servicing Agreement.
7
"Finance Charge Shortfalls" means, with respect to a Distribution Date,
the aggregate amount for all outstanding Series which the related Indenture
Supplements specify are "Finance Charge Shortfalls" for such Series and such
Distribution Date.
"Foreign Clearing Agency" means Clearstream and the Euroclear Operator.
"GAAP" means generally accepted accounting principles in the United
States in effect from time to time.
"Global Note" has the meaning set forth in Section 2.16.
"Grant" means to mortgage, pledge, bargain, warrant, alienate, remise,
release, convey, assign, transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to Master Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other monies payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Group" means, with respect to any Series, the group of Series, if any,
in which the related Indenture Supplement specifies such Series is to be
included.
"Indenture Supplement" means, with respect to any Series, a supplement
to the Master Indenture, executed by the parties hereto and delivered in
connection with the original issuance of the Notes of such Series pursuant to
Section 10.01, and an amendment to the Master Indenture executed pursuant to
Sections 10.01 or 10.02, and, in either case, including all amendments thereof
and supplements thereto.
"Indenture Trustee" means ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, in its capacity as trustee under this Master Indenture, its
successors in interest and any successor indenture trustee under this Master
Indenture.
"Independent" means, when used with respect to any specified Person,
that the Person (i) is in fact independent of the Issuer, any other obligor upon
the Notes, the Transferor, the Seller and any of their respective Affiliates,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Issuer, any such other obligor, the Transferor, the
Seller or any of their respective Affiliates and (iii) is not connected with the
Issuer, any such other obligor, the Transferor, the Seller or any of their
respective Affiliates as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 12.01, made by
an Independent appraiser or other expert appointed by an Issuer Order, and such
opinion or certificate shall state that the signer has read the definition
8
of "Independent" in this Master Indenture and that the signer is Independent
within the meaning thereof.
"Indirect Participant" means other Persons such as securities brokers
and dealers, banks and trust companies that clear or maintain a custodial
relationship with a participant of DTC, either directly or indirectly.
"Initial Accounts" has the meaning set forth in the Transfer and
Servicing Agreement.
"Initial Cut-Off Date" has the meaning set forth in the Transfer and
Servicing Agreement.
"Insolvency Event" has the meaning set forth in the Transfer and
Servicing Agreement.
"Insurance Proceeds" has the meaning set forth in the Transfer and
Servicing Agreement.
"Interchange" has the meaning set forth in the Transfer and Servicing
Agreement.
"Invested Amount" means, with respect to any Series and for any date,
an amount equal to the "Invested Amount" or "Adjusted Invested Amount," as
applicable, specified in the related Indenture Supplement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Issuer" means the Trust, and its successors.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Lien" has the meaning set forth in the Transfer and Servicing
Agreement.
"Master Indenture" means this master indenture, dated as of April 1,
2002, between the Issuer and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time including, with respect to
any Series or Class, the related Indenture Supplement.
"Monthly Period" means, with respect to each Distribution Date, unless
otherwise provided in an Indenture Supplement, the period from and including the
first day of the preceding calendar month to and including the last day of such
calendar month; provided, however, that the initial Monthly Period with respect
to any Series will commence on the Closing Date with respect to such Series and
end on last day of the calendar month preceding the first Distribution Date.
"Moody's" has the meaning set forth in the Transfer and Servicing
Agreement.
"New Issuance" has the meaning set forth in Section 2.12(a).
"Note Interest Rate" means, as of any particular date of determination
and with respect to any Series or Class, the interest rate as of such date
specified therefor in the related Indenture Supplement.
9
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an Indirect Participant,
in accordance with the rules of such Clearing Agency).
"Note Register" has the meaning set forth in Section 2.05.
"Noteholder" or "Holder" means the Person in whose name a Note is
registered on the Note Register and, if applicable, the holder of any Bearer
Note, Global Note or Coupon, as the case may be, or such other Person deemed to
be a "Noteholder" or "Holder" in any related Indenture Supplement.
"Notes" means all Series of Notes issued by the Trust pursuant to the
Master Indenture and the related Indenture Supplement.
"Notice of Default" has the meaning set forth in Section 5.02(c).
"Officer's Certificate" means, unless otherwise specified in this
Master Indenture, a certificate delivered to the Indenture Trustee signed by any
Authorized Officer of the Issuer, Seller, Transferor or the Servicer, as
applicable, under the circumstances described in, and otherwise complying with,
the applicable requirements of Section 12.01.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Person providing the opinion and who shall
be reasonably acceptable to the Indenture Trustee; provided that a Tax Opinion
shall be an opinion of nationally recognized tax counsel.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Master Indenture except:
(i) Notes theretofore canceled by the Transfer Agent and
Registrar or delivered to the Transfer Agent and Registrar for
cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Master Indenture
or provision therefor, satisfactory to the Indenture Trustee, has been
made); and
(iii) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to this Master Indenture
unless proof satisfactory to the Indenture Trustee is presented that
any such Notes are held by a Protected Purchaser;
provided that, in determining whether the Holders of the requisite Outstanding
Amount of the Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Issuer, any other
obligor upon the Notes, the Transferor, the Servicer or any Affiliate of any
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying upon any
such
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request, demand, authorization, direction, notice, consent or waiver, only Notes
that a Responsible Officer of the Indenture Trustee actually knows to be so
owned shall be so disregarded. Notes so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to act with respect
to such Notes and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Transferor, the Servicer or any of their respective Affiliates. In
making any such determination, the Indenture Trustee may rely on the
representations of the pledgee and shall not be required to undertake any
independent investigation.
"Outstanding Amount" means the aggregate principal amount of all Notes
Outstanding at the date of determination and, with respect to the Notes of a
particular Series, the aggregate principal amount of all Notes of such Series
which are Outstanding at the date of determination.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity, but solely as owner trustee under the Trust Agreement, its successors
in interest and any successor owner trustee under the Trust Agreement.
"Paired Series" means (i) each Series which has been paired with
another Series (which Series may be prefunded or partially prefunded), such that
the reduction of the Invested Amount or Adjusted Invested Amount of such Series
results in the increase of the Invested Amount of such other Series, as
described in the related Indenture Supplements, and (ii) such other Series.
"Participation Interest Supplements" has the meaning set forth in the
Transfer and Servicing Agreement.
"Pay Out Event" means, with respect to any Series, a Trust Pay Out
Event or a Series Pay Out Event.
"Paying Agent" means any paying agent appointed pursuant to Section
2.08 and shall initially be the Indenture Trustee; provided that if the
Indenture Supplement for a Series so provides, a separate or additional Paying
Agent may be appointed with respect to such Series.
"Permitted Assignee" means any Person who, if it were to purchase
Receivables (or interests therein) in connection with a sale thereof pursuant to
Sections 5.05(a) and 5.16, would not cause the Trust to be taxable as a publicly
traded partnership for federal income tax purposes, but shall not include the
Transferor and its Affiliates.
"Person" has the meaning set forth in the Transfer and Servicing
Agreement.
"Principal Receivables" has the meaning set forth in the Transfer and
Servicing Agreement.
"Principal Sharing Series" means a Series that, pursuant to the
Indenture Supplement therefor, is entitled to receive Shared Principal
Collections. If so specified in the Indenture Supplement for a Group of Series,
each such Series may be Principal Sharing Series only for the other Series in
such Group.
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"Principal Shortfalls" means, with respect to a Distribution Date, the
aggregate amount for all outstanding Series which the related Indenture
Supplements specify are "Principal Shortfalls" for such Series and for such
Distribution Date.
"Principal Terms" means, with respect to any Series, (i) the name or
designation; (ii) the initial principal amount (or method for calculating such
amount), the Invested Amount and the Required Transferor Interest; (iii) the
Note Interest Rate for each Class of Notes of such Series (or method for the
determination thereof); (iv) the payment date or dates and the date or dates
from which interest shall accrue; (v) the method for allocating Collections to
Noteholders; (vi) the designation of any Series Accounts and the terms governing
the operation of any such Series Accounts; (vii) the Servicing Fee; (viii) the
issuer and terms of any form of Series Enhancements with respect thereto; (ix)
the terms on which the Notes of such Series may be exchanged for Notes of
another Series, repurchased by the Transferor or remarketed to other investors;
(x) the Series Final Maturity Date; (xi) the number of Classes of Notes of such
Series and, if more than one Class, the rights and priorities of each such
Class; (xii) the extent to which the Notes of such Series will be issuable in
temporary or permanent global form (and, in such case, the depositary for such
global note or notes, the terms and conditions, if any, upon which such global
note may be exchanged, in whole or in part, for Definitive Notes, and the manner
in which any interest payable on a temporary or global note will be paid);
(xiii) whether the Notes of such Series may be issued in bearer form and any
limitations imposed thereon; (xiv) the priority of such Series with respect to
any other Series; (xv) whether such Series will be part of a Group; (xvi)
whether such Series will be a Principal Sharing Series; (xvii) whether such
Series will be an Excess Allocation Series; (xviii) the Distribution Date; (xix)
whether such Series will or may be a Paired Series and the Series with which it
will be paired, if applicable; and (xx) any other terms of such Series.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Protected Purchaser" has the meaning set forth in the New York UCC.
"Qualified Account" means either (i) a segregated account with an
Eligible Institution or (ii) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States or any State thereof (or any domestic branch of a foreign bank), and
acting as a trustee for funds deposited in such account, so long as any of the
unsecured, unguaranteed senior debt securities of such depository institution
shall have a credit rating from each Rating Agency in one of its generic credit
rating categories that signifies investment grade.
"Rating Agency" means, with respect to any outstanding Series or Class,
each rating agency, as specified in the applicable Indenture Supplement,
selected by the Transferor to rate the Notes of such Series or Class.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have notified the Transferor and the Indenture Trustee in
writing that such action will not result in a reduction or withdrawal of their
current rating of any outstanding Series or Class with respect to which it is a
Rating Agency or, with respect to any outstanding Series or Class not
12
rated by any Rating Agency, the written consent of the Noteholders of such
Series or Class as specified in the Indenture Supplement for such Series.
"Reallocated Principal Collections" has, with respect to any series,
the meaning set forth in the related Indenture Supplement.
"Receivables" has the meaning set forth in the Transfer and Servicing
Agreement.
"Receivables Purchase Agreement" means (i) the receivables purchase
agreement, dated as of April 1, 2002, between Nordstrom fsb, as seller, and
Nordstrom Credit Card Receivables LLC, as purchaser, as the same may be amended,
supplemented or otherwise modified from time to time or (ii) any receivables
purchase agreement entered into between the Transferor and an Account Owner, as
the same may be amended, supplemented or otherwise modified from time to time.
"Recoveries" has the meaning set forth in the Transfer and Servicing
Agreement.
"Record Date" means, with respect to any Distribution Date, (i) for
Definitive Notes, the last day of the calendar month immediately preceding such
Distribution Date or (ii) for Book-Entry Notes, the Business Day immediately
preceding such Distribution Date unless otherwise specified for a Series in the
related Indenture Supplement.
"Redemption Date" means, with respect to any Series, the date or dates,
if any, specified in the related Indenture Supplement.
"Registered Notes" means any Series or Class of Notes, together with
the Indenture Trustee's certificate of authentication related thereto, issued in
fully registered form.
"Removed Accounts" has the meaning set forth in the Transfer and
Servicing Agreement.
"Required Minimum Principal Balance" has the meaning set forth in the
Transfer and Servicing Agreement.
"Required Transferor Interest" means, with respect to any date, an
amount equal to the product of (i) the Required Transferor Percentage and (ii)
the aggregate amount of Principal Receivables.
"Required Transferor Percentage" means 9.0%; provided, however, that
the Transferor may reduce the Required Transferor Percentage upon (i) 30 days'
prior notice to the Indenture Trustee and each Rating Agency, (ii) satisfaction
of the Rating Agency Condition with respect thereto and (iii) delivery to the
Indenture Trustee of a certificate of a Vice President or more senior officer of
the Transferor stating that the Transferor reasonably believes that such
reduction will not, based on the facts known to such officer at the time of such
certification, then or thereafter have an Adverse Effect.
"Responsible Officer" means, when used with respect to the Indenture
Trustee, any officer (i) within the Corporate Trust Office, including any vice
president, assistant vice president, assistant treasurer, assistant secretary,
trust officer or any other officer of the Indenture
13
Trustee customarily performing functions similar to those performed by the
individuals who at the time shall be such officers or to whom any corporate
trust matter is referred at the Corporate Trust Office because of such officer's
knowledge of and familiarity with the particular subject and (ii) who shall have
direct responsibility for the administration of this Master Indenture and the
other Transaction Documents.
"Revolving Period" means, with respect to each Series, the period
specified in the related Indenture Supplement.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means Nordstrom fsb, in its capacity as seller under the
Receivables Purchase Agreement, or any other seller under a Receivables Purchase
Agreement, and their respective successors.
"Series" means any series of Notes issued pursuant to this Master
Indenture and the related Indenture Supplement.
"Series Account" means any deposit, trust, securities escrow or similar
account maintained for the benefit of the Noteholders of any Series or Class, as
specified in any Indenture Supplement.
"Series Enhancement" means the rights and benefits provided to the
Trust or the Noteholders of any Series or Class pursuant to any letter of
credit, surety bond, cash collateral account, collateral invested amount, spread
account, reserve account, guaranteed rate agreement, maturity liquidity
facility, tax protection agreement, interest rate swap agreement, interest rate
cap agreement or other similar arrangement. The subordination of any Series or
Class to another Series or Class shall be deemed to be a Series Enhancement.
"Series Enhancer" means the Person or Persons providing any Series
Enhancement, other than (except to the extent otherwise provided with respect to
any Series in the related Indenture Supplement) the Noteholders of any Series or
Class which is subordinated to another Series or Class.
"Series Final Maturity Date" means, with respect to any Series, the
final maturity date for such Series specified in the related Indenture
Supplement.
"Series Issuance Date" means, with respect to any Series, the date on
which the Notes of such Series are to be originally issued in accordance with
Section 2.12 and the related Indenture Supplement.
"Series Pay Out Event" has, with respect to any Series, the meaning
specified pursuant to the related Indenture Supplement.
"Servicer" has the meaning set forth in the Transfer and Servicing
Agreement.
"Servicer Default" has the meaning set forth in the Transfer and
Servicing Agreement.
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"Servicing Fee" has the meaning set forth in the Transfer and Servicing
Agreement.
"Shared Excess Finance Charge Collections" means, with respect to any
Distribution Date, the aggregate amount for all outstanding Series that the
related Indenture Supplements specify are to be treated as "Shared Excess
Finance Charge Collections" for such Distribution Date.
"Shared Principal Collections" means, with respect to a Distribution
Date, the aggregate amount for all outstanding Series of Collections of
Principal Receivables which the related Indenture Supplements specify are to be
treated as "Shared Principal Collections" for such Distribution Date.
"Special Funding Account" has the meaning set forth in Section 8.03.
"Special Funding Amount" means the amount on deposit in the Special
Funding Account.
"Standard & Poor's" has the meaning set forth in the Transfer and
Servicing Agreement.
"State" means any state of the United States and the District of
Columbia.
"Successor Servicer" has the meaning set forth in the Transfer and
Servicing Agreement.
"Tax Opinion" means, with respect to any action, an Opinion of Counsel
to the effect that, for federal income tax purposes, such action will not (i)
adversely affect the tax characterization as debt of the Notes of any
outstanding Series or Class that were characterized as debt at the time of their
issuance, (ii) cause the Trust to be deemed to be an association (or publicly
traded partnership) taxable as a corporation and (iii) cause or constitute an
event in which gain or loss would be recognized by any Noteholder.
"Termination Notice" has the meaning set forth in the Transfer and
Servicing Agreement.
"Transaction Documents" means, with respect to any Series of Notes, the
Certificate of Trust, the Trust Agreement, each related Receivables Purchase
Agreement, the Transfer and Servicing Agreement, this Master Indenture, the
related Indenture Supplement, any Enhancement Agreement, the Administration
Agreement, and such other documents and certificates delivered in connection
therewith.
"Transfer Agent and Registrar" has the meaning set forth in Section
2.05.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement, dated as of April 1, 2002, among the Transferor, the Servicer, the
Indenture Trustee and the Issuer, as the same may be amended, supplemented or
otherwise modified from time to time.
"Transfer Date" means the Business Day immediately preceding each
Distribution Date.
"Transfer Restriction Event" has the meaning set forth in the Transfer
and Servicing Agreement.
15
"Transferor" has the meaning set forth in the Transfer and Servicing
Agreement.
"Transferor Interest" means on any date of determination an amount
equal to (i) the sum of (a) an amount equal to the aggregate balance of
Principal Receivables plus (b) the Special Funding Amount, in each case, at the
end of the day immediately prior to such date of determination, minus (ii) the
aggregated Invested Amounts with respect to all Series of Notes issued and
outstanding on such date of determination.
"Transferor Percentage" means, on any date of determination, when used
with respect to Principal Receivables, Finance Charge Receivables and Defaulted
Receivables, a percentage equal to 100% minus the Aggregate Investor Percentage
with respect to such category of Receivables.
"Trust" means the Nordstrom Credit Card Master Note Trust.
"Trust Agreement" means the Trust Agreement relating to the Trust,
dated as of April 1, 2002, between Nordstrom Credit Card Receivables LLC, as
transferor, and the Owner Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended.
"Trust Pay Out Event" has the meaning set forth in Section 5.01.
"Trustees" means the Indenture Trustee and the Owner Trustee.
"UCC" shall have the meaning set forth in the Transfer and Servicing
Agreement.
"United States" means the United States of America.
Section 1.02. Other Definitional Provisions.
(a) With respect to any Series, capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement, the Transfer and Servicing Agreement or the related Indenture
Supplement, as the case may be.
(b) All terms defined in this Master Indenture shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Master Indenture and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Master Indenture or in any such certificate or other document,
and accounting terms partly defined in this Master Indenture or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under GAAP. To the extent that the definitions
of accounting terms in this Master Indenture or in any such certificate or other
document are inconsistent with the meanings of such terms under GAAP, the
definitions contained in this Master Indenture or in any such certificate or
other document shall control.
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(d) Any reference to each Rating Agency shall only apply to any
specific rating agency if such rating agency is then rating any outstanding
Series.
(e) Unless otherwise specified, references to any amount as on deposit
or outstanding on any particular date means such amount at the close of business
on such day.
(f) Whenever this Master Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Master Indenture have the following
meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Master Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Master Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
(g) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to this Agreement include all Exhibits hereto, (iii) references
to words such as "herein", "hereof" and the like shall refer to this Agreement
as a whole and not to any particular part, Article or Section within this
Agreement, (iv) references to an Article or Section such as "Article One" or
"Section 1.01" and the like shall refer to the applicable Article or Section of
this Agreement, (v) the term "include" and all variations thereof shall mean
"include without limitation", (vi) the term "or" shall include "and/or" and
(vii) the term "proceeds" shall have the meaning ascribed to such term in the
UCC.
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ARTICLE TWO
THE NOTES
Section 2.01. Form Generally. Any Series or Class of Notes, together
with the Indenture Trustee's certificate of authentication related thereto, may
be issued in bearer form with attached interest coupons and a special coupon or
in fully registered form and shall be in substantially the form of an exhibit to
the related Indenture Supplement with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Master
Indenture or such Indenture Supplement, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their 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 terms of any Notes set forth in an exhibit
to the related Indenture Supplement are part of the terms of this Master
Indenture, as applicable.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, all as determined by
the officers executing such Notes, as evidenced by its execution of such Notes.
Each Note will be dated the Closing Date and each Definitive Note will
be dated as of the date of its authentication.
Section 2.02. Denominations. Except as otherwise specified in the
related Indenture Supplement and the Notes, each class of Notes of each Series
shall be issued in fully registered form in minimum amounts of $100,000 and in
integral multiples of $1,000 in excess thereof (except that one Note of each
Class may be issued in a different amount, so long as such amount exceeds the
applicable minimum denomination for such Class), and shall be issued upon
initial issuance as one or more Notes in an aggregate original principal amount
equal to the applicable Invested Amount for such Class or Series.
Section 2.03. Execution, Authentication and Delivery. Each Note shall
be executed by manual or facsimile signature on behalf of the Issuer by an
Authorized Officer. Notes bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Issuer shall not be rendered invalid, notwithstanding the
fact that such individual ceased to be so authorized prior to the authentication
and delivery of such Notes or does not hold such office at the date of issuance
of such Notes.
At any time and from time to time after the execution and delivery of
this Master Indenture, the Issuer may deliver Notes executed by the Issuer to
the Indenture Trustee for authentication and delivery, and the Indenture Trustee
shall authenticate at the written direction of the Issuer and deliver such Notes
as provided in this Master Indenture or the related Indenture Supplement and not
otherwise. Each Note shall be dated its date of authentication.
No Note shall be entitled to any benefit under this Master Indenture or
the applicable Indenture Supplement or be valid or obligatory for any purpose,
unless there appears on such
18
Note a certificate of authentication substantially in the form provided for
herein or in the related Indenture Supplement executed by or on behalf of the
Indenture Trustee by the manual signature of a duly authorized signatory, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
Section 2.04. Authenticating Agent.
(a) The Indenture Trustee may appoint one or more authenticating agents
with respect to the Notes which shall be authorized to act on behalf of the
Indenture Trustee in authenticating the Notes in connection with the issuance,
delivery, registration of transfer, exchange or repayment of the Notes. Whenever
reference is made in this Master Indenture to the authentication of Notes by the
Indenture Trustee or the Indenture Trustee's certificate of authentication, such
reference shall be deemed to include authentication on behalf of the Indenture
Trustee by an authenticating agent and a certificate of authentication executed
on behalf of the Indenture Trustee by an authenticating agent. Each
authenticating agent must be acceptable to the Issuer and the Servicer.
(b) Any institution succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any power or any further act on the part of the Indenture
Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Indenture Trustee, the Issuer and the Servicer. The
Indenture Trustee may at any time terminate the agency of an authenticating
agent by giving notice of termination to such authenticating agent and to the
Issuer and the Servicer. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time an authenticating agent shall cease
to be acceptable to the Indenture Trustee or the Issuer and the Servicer, the
Indenture Trustee may promptly appoint a successor authenticating agent. Any
successor authenticating agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an authenticating agent.
No successor authenticating agent shall be appointed unless acceptable to the
Issuer and the Servicer.
(d) The Issuer agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section.
(e) The provisions of Sections 6.01 and 6.04 shall be applicable to any
authenticating agent.
(f) Pursuant to an appointment made under this Section, the Notes may
have endorsed thereon, in lieu of or in addition to the Indenture Trustee's
certificate of authentication, an alternative certificate of authentication in
substantially the following form:
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This is one of the Notes described in the within-mentioned Agreement.
as Authenticating Agent
for the Indenture Trustee
By:
--------------------------------
Authorized Signatory
Section 2.05. Registration of and Limitations on Transfer and Exchange
of Notes. The Issuer shall cause to be kept a register (the "Note Register") in
which the entity acting as transfer agent and registrar (the "Transfer Agent and
Registrar") shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee initially shall be the Transfer Agent
and Registrar for the purpose of registering Notes and transfers of Notes as
herein provided. Upon any resignation of any Transfer Agent and Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Transfer Agent and Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Transfer Agent and Registrar, the Issuer will give the Indenture Trustee
prompt written notice of the appointment of a Transfer Agent and Registrar and
of the location, and any change in the location, of the Transfer Agent and
Registrar and Note Register. The Indenture Trustee shall have the right to
inspect the Note Register at all reasonable times and to obtain copies thereof,
and the Indenture Trustee shall have the right to rely upon a certificate
executed on behalf of the Transfer Agent and Registrar by an officer thereof as
to the names and addresses of the Noteholders and the principal amounts and
numbers of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Transfer Agent and Registrar, to be maintained as provided in
Section 3.02, if the requirements of Section 8-401 of the UCC are met, the
Issuer shall execute, and upon receipt of such surrendered Note the Indenture
Trustee shall authenticate and deliver to the Noteholder, in the name of the
designated transferee or transferees, one or more new Notes (of the same Series
and Class) in any authorized denominations of like aggregate principal amount.
At the option of a Noteholder, Notes may be exchanged for other Notes
(of the same Series and Class) in any authorized denominations and of like
aggregate principal amount, upon surrender of such Notes to be exchanged at the
office or agency of the Transfer Agent and Registrar. Whenever any Notes are so
surrendered for exchange, if the requirements of Section 8-401 of the UCC are
met, the Issuer shall execute, and upon receipt of such surrendered Note the
Indenture Trustee shall authenticate and deliver to the Noteholder, the Notes
which the Noteholder making the exchange is entitled to receive.
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All Notes issued upon any registration of transfer or exchange of Notes
shall evidence the same obligations, evidence the same debt, and be entitled to
the same rights and privileges under this Master Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in a form satisfactory to the Indenture Trustee duly executed by, the
Noteholder thereof or its attorney-in-fact duly authorized in writing, and by
such other documents as the Indenture Trustee may reasonably require.
The registration of transfer of any Note shall be subject to the
additional requirements, if any, set forth in the related Indenture Supplement.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer and Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of such Notes.
All Notes surrendered for registration of transfer and exchange shall
be canceled by the Issuer and delivered to the Indenture Trustee for subsequent
destruction without liability on the part of either. The Indenture Trustee shall
destroy the Global Note upon its exchange in full for Definitive Notes and shall
deliver a certificate of destruction to the Transferor. Such certificate shall
also state that a certificate or certificates of each Foreign Clearing Agency
referred to in the applicable Indenture Supplement was received with respect to
each portion of the Global Note exchanged for Definitive Notes.
Unless otherwise set forth in an Indenture Supplement, the preceding
provisions of this Section notwithstanding, the Issuer shall not be required to
make, and the Transfer Agent and Registrar need not register, transfers or
exchanges of Notes for a period of 20 days preceding the due date for any
payment with respect to the Note.
If and so long as any Series of Notes are listed on the Luxembourg
Stock Exchange and such exchange shall so require, the Indenture Trustee shall
appoint a co-transfer agent and co-registrar in Luxembourg or another European
city. Any reference in this Master Indenture to the Transfer Agent and Registrar
shall include any co-transfer agent and co-registrar unless the context
otherwise requires. The Indenture Trustee will enter into any appropriate agency
agreement with any co-transfer agent and co-registrar not a party to this Master
Indenture, which will implement the provisions of this Master Indenture that
relate to such agent.
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its reasonable satisfaction of the destruction, loss or
theft of any Note, and (ii) in case of destruction, loss, or theft there is
delivered to the Indenture Trustee such security or indemnity as may be required
by it to hold the Issuer, the Noteholders, the Transfer Agent, the Registrar and
the Indenture Trustee harmless, then, in the absence of notice to the Issuer,
the Transfer Agent and Registrar or the Indenture Trustee that such Note has
been acquired by a Protected Purchaser, the Issuer shall execute, and the
Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Note, a replacement Note
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of like tenor (including the same date of issuance) and principal amount,
bearing a number not contemporaneously outstanding; provided, however, that if
any such mutilated, destroyed, lost or stolen Note shall have become or within
seven days shall be due and payable, or shall have been selected or called for
redemption, instead of issuing a replacement Note, the Issuer may pay such Note
without surrender thereof, except that any mutilated Note shall be surrendered.
If, after the delivery of such replacement Note or payment of a destroyed, lost
or stolen Note pursuant to the proviso to the preceding sentence, a Protected
Purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such payment) from the
Person to whom it was delivered or any Person taking such replacement Note from
such Person to whom such replacement Note was delivered or any assignee of such
Person, except a Protected Purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee or the Transfer Agent and Registrar) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute complete and
indefeasible evidence of debt of the Trust, as if originally issued, whether or
not the mutilated, destroyed, lost or stolen Note shall be found at any time,
and shall be entitled to all the benefits of this Master Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 2.07. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Transferor, the Issuer or the Indenture Trustee shall treat the
Person in whose name any Note is registered as the owner of such Note for the
purpose of receiving distributions pursuant to the terms of the applicable
Indenture Supplement and for all other purposes whatsoever, whether or not such
Note is overdue, and neither the Issuer, the Transferor, the Indenture Trustee
nor any agent of the Issuer, the Transferor or the Indenture Trustee shall be
affected by any notice to the contrary.
Section 2.08. Appointment of Paying Agent.
(a) The Issuer reserves the right at any time to vary or terminate the
appointment of a Paying Agent for the Notes, and to appoint additional or other
Paying Agents, provided that it will at all times maintain the Indenture Trustee
as Paying Agent.
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If and so long as any Notes are listed on the Luxembourg Stock Exchange
and such exchange shall so require, the Indenture Trustee will appoint a
co-paying agent in Luxembourg or another European city. The Indenture Trustee
will enter into any appropriate agency agreement with any co-paying agent not a
party to this Master Indenture, which will implement the provisions of this
Master Indenture that relate to such agent. The Indenture Trustee initially
appoints Kredietbank S.A. Luxembourgeoise, at its office located at ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as Paying Agent for each Series of Notes listed on the
Luxembourg Stock Exchange.
Notice of all changes in the identity or specified office of a Paying
Agent will be delivered promptly to the Noteholders by the Indenture Trustee.
(b) The Indenture Trustee shall cause the Paying Agent (other than
itself) to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee that it will hold all
sums, if any, held by it for payment to the Noteholders in trust for the benefit
of the Noteholders entitled thereto until such sums shall be paid to such
Noteholders and shall agree, and if the Indenture Trustee is the Paying Agent it
hereby agrees, that it shall comply with all requirements of the Code regarding
the withholding by the Indenture Trustee of payments in respect of federal
income taxes due from the Beneficial Owners.
Section 2.09. Access to List of Noteholders' Names and Addresses.
(a) The Indenture Trustee will furnish or cause to be furnished to the
Issuer, the Servicer, any Noteholder or the Paying Agent, within five Business
Days after receipt by the Indenture Trustee of a written request therefor from
the Issuer, the Servicer, such Noteholder or the Paying Agent, respectively, a
list of the names and addresses of the Noteholders. Unless otherwise provided in
the related Indenture Supplement, holders of 10% of the Outstanding Amount of
the Notes of any Series (the "Applicants") may apply in writing to the Indenture
Trustee, and if such application states that the Applicants desire to
communicate with other Noteholders of any Series with respect to their rights
under this Master Indenture or under the Notes and is accompanied by a copy of
the communication which such Applicants propose to transmit, then the Indenture
Trustee, after having been adequately indemnified by such Applicants for its
costs and expenses, shall afford or shall cause the Transfer Agent and Registrar
to afford such Applicants access during normal business hours to the most recent
list of Noteholders held by the Indenture Trustee and shall give the Servicer
notice that such request has been made, within five Business Days after the
receipt of such application. Such list shall be as of a date no more than 45
days prior to the date of receipt of such Applicants' request.
(b) Every Noteholder, by receiving and holding a Note, agrees that none
of the Issuer, the Owner Trustee, the Indenture Trustee, the Transfer Agent and
Registrar and the Servicer or any of their respective agents and employees shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Noteholders hereunder, regardless of the sources
from which such information was derived.
Section 2.10. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by it. Pursuant to an Issuer
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Request, 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 lawful manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Indenture Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Master Indenture. All
canceled Notes held by the Indenture Trustee shall be destroyed unless the
Issuer shall direct by a timely order that they be returned to it.
Section 2.11. Release of Collateral. Subject to Section 12.01, the
Indenture Trustee shall release property from the lien of this Master Indenture
only upon receipt of an Issuer Request accompanied by an Officer's Certificate,
an Opinion of Counsel and Independent Certificates in accordance with TIA
Section 314(c) and 314(d) or an Opinion of Counsel in lieu of such Independent
Certificates to the effect that the TIA does not require any such Independent
Certificates.
Section 2.12. New Issuances.
(a) Pursuant to one or more Indenture Supplements, the Transferor may
from time to time direct the Owner Trustee in writing, on behalf of the Issuer,
to issue one or more new Series of Notes (each, a "New Issuance"). The Notes of
all outstanding Series shall be equally and ratably entitled as provided herein
to the benefits of this Master Indenture without preference, priority or
distinction, all in accordance with the terms and provisions of this Master
Indenture and the applicable Indenture Supplement except, with respect to any
Series or Class, as provided in the related Indenture Supplement. Interest on
and principal of the Notes of each outstanding Series shall be paid on each
Distribution Date as specified in the Indenture Supplement relating to such
outstanding Series.
(b) On or before the Series Issuance Date relating to any new Series of
Notes, the parties hereto will execute and deliver an Indenture Supplement which
will specify the Principal Terms of such Series. The terms of such Indenture
Supplement may modify or amend the terms of this Master Indenture solely as
applied to such new Series. The obligation of the Owner Trustee to execute, on
behalf of the Issuer, the Notes of any Series and of the Indenture Trustee to
authenticate such Notes and to execute and deliver the related Indenture
Supplement (other than any Series issued pursuant to an Indenture Supplement
dated as of April 1, 2002) is subject to the satisfaction of the following
conditions:
(i) on or before the fifth day immediately preceding the
Series Issuance Date, the Transferor shall have given the Trustees, the
Servicer and each Rating Agency notice (unless such notice requirement
is otherwise waived) of such issuance and the Series Issuance Date;
(ii) the Transferor shall have delivered to the Trustees any
related Indenture Supplement, in form satisfactory to the Owner Trustee
(as such and in its individual capacity) and the Indenture Trustee,
executed by the parties thereto;
(iii) the Transferor shall have delivered to the Trustees any
related Enhancement Agreement executed by the parties thereto;
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(iv) the Transferor shall have delivered to the Trustees (with
a copy to each Rating Agency) a Tax Opinion, dated the Series Issuance
Date;
(v) the Rating Agency Condition shall have been satisfied with
respect to such issuance;
(vi) such issuance will not result in any Adverse Effect and
the Transferor shall have delivered to the Trustees an Officer's
Certificate, dated the Series Issuance Date, to the effect that (A) the
Transferor reasonably believes that such issuance will not, based on
the facts known to such officer at the time of such certification,
result in an Adverse Effect, and (B) all conditions precedent to such
execution, authentication, and delivery have been satisfied; and
(vii) the aggregate amount of Principal Receivables shall be
greater than the Required Minimum Principal Balance and the Transferor
Interest shall be greater than the Required Transferor Interest, each
as of the Series Issuance Date and after giving effect to such
issuance.
Any Note held by the Transferor at any time after the date of its initial
issuance may be transferred or exchanged only upon the delivery to the Trust and
the Indenture Trustee of a Tax Opinion dated as of the date of such transfer or
exchange, as the case may be, with respect to such transfer or exchange.
(c) Upon satisfaction of the above conditions, pursuant to Section
2.03, the Owner Trustee, on behalf of the Issuer, shall execute and the
Indenture Trustee shall authenticate and deliver the Notes of such Series as
provided in this Master Indenture and the applicable Indenture Supplement.
Notwithstanding the provisions of this Section, prior to the execution of any
Indenture Supplement (other than an Indenture Supplement dated as of April 1,
2002), the Indenture Trustee and Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such Indenture
Supplement is authorized or permitted by this Master Indenture and any Indenture
Supplement related to any outstanding Series. The Indenture Trustee and Owner
Trustee may, but shall not be obligated to, enter into any such Indenture
Supplement which adversely affects the Indenture Trustee's or Owner Trustee's
(as such or in its individual capacity) own rights, duties, benefits,
protections, privileges or immunities under this Master Indenture.
(d) The Issuer may direct the Indenture Trustee to deposit the net
proceeds from any New Issuance in the Special Funding Account. The Issuer may
also specify that on any Transfer Date the proceeds from the sale of any new
Series may be withdrawn from the Special Funding Account and treated as Shared
Principal Collections.
Section 2.13. Book-Entry Notes. Unless otherwise provided in any
related Indenture Supplement, the Notes, upon original issuance, shall be issued
in the form of Global Notes representing the Book-Entry Notes.
The Global Notes of each Series representing the Book-Entry Notes
shall, unless otherwise provided in the related Indenture Supplement, initially
be registered in the Note Register in the name of the nominee of the Clearing
Agency or Foreign Clearing Agency for
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such Book-Entry Notes and shall be delivered to the Indenture Trustee or,
pursuant to such Clearing Agency's or Foreign Clearing Agency's instructions
held by the Indenture Trustee's agent as custodian for the Clearing Agency or
Foreign Clearing Agency.
Unless and until Definitive Notes are issued under the limited
circumstances described in Section 2.15, no Beneficial Owner shall be entitled
to receive a Definitive Note representing such Beneficial Owner's interest in
such Note. Unless and until Definitive Notes have been issued to the Beneficial
Owners pursuant to Section 2.15:
(a) the provisions of this Section shall be in full force and
effect with respect to each such Series;
(b) the Indenture Trustee shall be entitled to deal with the
Clearing Agency or Foreign Clearing Agency and the Clearing Agency
Participants for all purposes of this Master Indenture (including the
payment of principal of and interest on the Notes of each such Series)
as the authorized representatives of the Beneficial Owners;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Master Indenture, the provisions of
this Section shall control with respect to each such Series;
(d) the rights of Beneficial Owners of each such Series shall
be exercised only through the Clearing Agency or Foreign Clearing
Agency and the applicable Clearing Agency Participants and shall be
limited to those established by law and agreements between such
Beneficial Owners and the Clearing Agency or Foreign Clearing Agency
and/or the Clearing Agency Participants; pursuant to the depository
agreement applicable to a Series, unless and until Definitive Notes of
such Series are issued pursuant to Section 2.15, the initial Clearing
Agency shall make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the Notes to such Clearing Agency Participants; and
(e) whenever this Master Indenture requires or permits actions
to be taken based upon instructions or directions of the Holders of
Notes evidencing a specified percentage of the Outstanding Amount of
the Notes, the Clearing Agency or Foreign Clearing Agency shall be
deemed to represent such percentage only to the extent that they have
received instructions to such effect from the Beneficial Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and has
delivered such instructions to a Responsible Officer of the Indenture
Trustee.
Section 2.14. Notices to Clearing Agency or Foreign Clearing Agency.
Whenever a notice or other communication to the Noteholders is required under
this Master Indenture, unless and until Definitive Notes shall have been issued
to Beneficial Owners pursuant to Section 2.15, the Indenture Trustee shall give
all such notices and communications specified herein to be given to Noteholders
to the Clearing Agency or Foreign Clearing Agency, as applicable, and shall have
no obligation to the Beneficial Owners.
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Section 2.15. Definitive Notes. If so specified in the related
Indenture Supplement, Notes may be issued as Definitive Notes. If (i) (a) the
Issuer advises the Indenture Trustee in writing that the Clearing Agency or
Foreign Clearing Agency is no longer willing or able to discharge properly its
responsibilities as Clearing Agency or Foreign Clearing Agency with respect to
the Book-Entry Notes of a given Class and (b) the Indenture Trustee or Issuer is
unable to locate and reach an agreement on satisfactory terms with a qualified
successor, (ii) the Issuer, at its option, advises the Indenture Trustee in
writing that it elects to terminate the book-entry system through the Clearing
Agency or Foreign Clearing Agency with respect to such Class or (iii) after the
occurrence of a Servicer Default, Beneficial Owners having an aggregate of a
majority of the Outstanding Amount of the Notes (or such other percentage as
specified in the related Indenture Supplement) of such Class advise the
Indenture Trustee and the applicable Clearing Agency or Foreign Clearing Agency
through the applicable Clearing Agency Participants in writing that the
continuation of a book-entry system is no longer in the best interests of the
Beneficial Owners of such Class, the Clearing Agency or Foreign Clearing Agency,
as the case may be, shall notify all Beneficial Owners of such Class of the
occurrence of such event and of the availability of Definitive Notes to
Beneficial Owners of such Class requesting the same. Upon surrender to the
Indenture Trustee of the Notes of such Class, accompanied by registration
instructions from the applicable Clearing Agency, the Issuer shall execute and
the Indenture Trustee shall authenticate Definitive Notes of such Class and
shall recognize the registered holders of such Definitive Notes as Noteholders
under this Master Indenture. Neither the Issuer nor the Indenture Trustee shall
be liable for any delay in delivery of such instructions, and the Issuer and the
Indenture Trustee may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Notes of such Series, all
references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be
imposed upon and performed by the Indenture Trustee, to the extent applicable
with respect to such Definitive Notes to the extent that the Indenture Trustee
is able to so perform, and the Indenture Trustee shall recognize the registered
holders of the Definitive Notes of such Series as Noteholders of such Series
hereunder. Definitive Notes will be transferable and exchangeable at the offices
of the Transfer Agent and Registrar.
Section 2.16. Global Notes. Unless otherwise specified in the related
Indenture Supplement for any Series, Notes may be initially issued in the form
of temporary or permanent Global Notes (each, a "Global Note") in bearer form,
without interest coupons, in the denomination of the initial Invested Amount and
substantially in the form attached to the related Indenture Supplement. Unless
otherwise specified in the related Indenture Supplement, the provisions of this
Section shall apply to such Global Notes. Each 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 Definitive Notes. The Global Note may be
exchanged in the manner described in the related Indenture Supplement for
Registered Notes or Bearer Notes in definitive form. Except as otherwise
specifically provided in the Indenture Supplement, any Notes that are issued in
bearer form pursuant to this Master Indenture shall be issued in accordance with
the requirements of Code Section 163(f)(2).
Section 2.17. Meetings of Noteholders. To the extent provided by the
Indenture Supplement for any Series issued in whole or in part in Bearer Notes,
the Servicer or the Indenture Trustee may at any time call a meeting of the
Noteholders of such Series, to be held at
27
such time and at such place as the Servicer or the Indenture Trustee, as the
case may be, shall determine, for the purpose of approving a modification of or
amendment to, or obtaining a waiver of, any covenant or condition set forth in
this Master Indenture with respect to such Series or in the Notes of such
Series, subject to Article Ten.
Section 2.18. Uncertificated Classes. Notwithstanding anything to the
contrary contained in this Article or in Article Eleven, unless otherwise
specified in any Indenture Supplement, any provisions contained in this Article
and in Article Eleven relating to the registration, form, execution,
authentication, delivery, presentation, cancellation and surrender of Notes
shall not be applicable to any uncertificated Notes, provided, however, that,
except as otherwise specifically provided in the Indenture Supplement, any such
uncertificated Notes shall be issued in "registered form" within the meaning of
Code Section 163(f)(1).
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ARTICLE THREE
COVENANTS OF ISSUER
Section 3.01. Payment of Principal and Interest.
(a) The Issuer will duly and punctually pay principal and interest in
accordance with the terms of the Notes as specified in the relevant Indenture
Supplement.
(b) The Noteholders of a Series as of the Record Date in respect of a
Distribution Date shall be entitled to the interest accrued and payable and
principal payable on such Distribution Date as specified in the related
Indenture Supplement. All payment obligations under a Note are discharged to the
extent such payments are made to the Noteholder of record.
Section 3.02. Maintenance of Office or Agency. The Issuer will maintain
an office or agency within the city of Minneapolis, Minnesota and such other
locations as may be set forth in an Indenture Supplement where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuer in respect of the Notes and this Master Indenture may be served. The
Issuer hereby initially appoints the Indenture Trustee at its Corporate Trust
Office to serve as its agent for the foregoing purposes. The Issuer will give
prompt written notice to the Indenture Trustee and the Noteholders of the
location, and of any change in the location, of any such office or agency. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee at
its Corporate Trust Office as its agent to receive all such presentations,
surrenders, notices and demands.
Section 3.03. Money for Note Payments to be Held in Trust. As specified
in Section 8.03 and in the related Indenture Supplement, all payments of amounts
due and payable with respect to the Notes which are to be made from amounts
withdrawn from the Collection Account and the Special Funding Account shall be
made on behalf of the Issuer by the Indenture Trustee or by the Paying Agent,
and no amounts so withdrawn from the Collection Account or the Special Funding
Account shall be paid over to or at the direction of the Issuer except as
provided in this Section and in the related Indenture Supplement.
Whenever the Issuer shall have a Paying Agent in addition to the
Indenture Trustee, it will, on or before the Business Day next preceding each
Distribution Date, direct the Indenture Trustee to deposit with such Paying
Agent on or before such Distribution Date an aggregate sum sufficient to pay the
amounts then becoming due, such sum to be (i) held in trust for the benefit of
Persons entitled thereto and (ii) invested, pursuant to an Issuer Order, by the
Paying Agent in an Eligible Investment in accordance with the terms of the
related Indenture Supplement. For all investments made by a Paying Agent under
this Section, such Paying Agent shall be entitled to all of the rights and
obligations of the Indenture Trustee under the related Indenture Supplement,
such rights and obligations being incorporated in this paragraph by this
reference.
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The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section, that such Paying Agent, in acting as Paying Agent, is an express
agent of the Issuer and, further, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with respect
to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, immediately pay to
the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
the Indenture Trustee all sums held by it by in trust for the payment
of Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Master Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which such sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Section 3.04. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States, in which
case the Issuer will keep in full effect its existence, rights and franchises
under the laws of such other jurisdiction) and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this Master
Indenture, the Notes, the Collateral and each other related instrument or
agreement.
Section 3.05. Protection of Trust. The Issuer will from time to time
prepare, or cause to be prepared, execute and deliver all such supplements and
amendments hereto and all such
30
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
(a) grant more effectively all or any portion of the
Collateral as security for the Notes;
(b) maintain or preserve the lien (and the priority thereof)
of this Master Indenture or to carry out more effectively the purposes
hereof;
(c) perfect, publish notice of, or protect the validity of any
Grant made or to be made under this Master Indenture;
(d) enforce any Grant of the Collateral; or
(e) preserve and defend title to the Collateral securing the
Notes and the rights therein of the Indenture Trustee and the
Noteholders secured thereby against the claims of all Persons and
parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required pursuant to this Section.
The Issuer shall pay or cause to be paid any taxes levied on all or any
part of the Collateral securing the Notes.
Section 3.06. Opinions as to Collateral.
(a) On the Series Issuance Date relating to any new Series of Notes,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel (with a
copy to each Rating Agency) either stating that, in the opinion of such counsel,
such action has been taken to perfect the lien and the security interest of this
Master Indenture, including with respect to the recording and filing of this
Master 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 so necessary and reciting the
details of such action, or stating that, in the opinion of such counsel, no such
action is necessary to maintain the lien and the perfection of such security
interest, and that such perfected security interest is of first priority.
(b) On or before April 30 in each calendar year, beginning in 2003, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel (with a copy
to each Rating Agency) either stating that, in the opinion of such counsel, such
action has been taken to perfect the lien and security interest of this Master
Indenture, including with respect to the recording, filing, re-recording and
refiling of this Master 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 so necessary and reciting
the details of such action or stating that in the opinion of such counsel no
such action is necessary to maintain the lien and the perfection of such
security interest, and that such perfected security interest is of first
priority. Such Opinion of Counsel shall also describe the recording, filing,
re-recording and refiling of this Master Indenture, any indentures supplemental
hereto and any other requisite documents and the
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execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the
perfection of the lien and security interest of this Master Indenture until May
30 in the following calendar year.
Section 3.07. 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 Master Indenture, the Transfer and Servicing
Agreement or other Transaction Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Master Indenture, and any performance of such
duties by a Person identified to the Indenture Trustee in an Officer's
Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Administrator to assist the Issuer
in performing its duties under this Master Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Master Indenture, the other
Transaction Documents and in the instruments and agreements relating to the
Collateral, including filing or causing to be filed all UCC financing statements
and continuation statements required to be filed by the terms of this Master
Indenture and the Transfer and Servicing 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 any Transaction Document or any provision thereof
without the consent of the Holders of at least 66 2/3% of the Outstanding Amount
of the Notes of each adversely affected Series.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default under the Transfer and Servicing Agreement, the Issuer shall cause the
Indenture Trustee to promptly notify the Rating Agencies thereof, and shall
cause the Indenture Trustee to specify in such notice the action, if any, being
taken with respect to such default. If a Servicer Default shall arise from the
failure of the Servicer to perform any of its duties or obligations under the
Transfer and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
(e) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 7.01 of the Transfer and Servicing Agreement, the Servicer
shall continue to perform all servicing functions under the Transfer and
Servicing Agreement until the date specified in the Termination Notice or
otherwise specified by the Indenture Trustee or until a date mutually agreed
upon by the Servicer and the Indenture Trustee. As promptly as possible after
the giving of a Termination Notice to the Servicer, the Indenture Trustee shall
appoint a Successor Servicer, and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment at the time when the Servicer ceases to act as
Servicer,
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the Indenture Trustee without further action shall automatically be appointed
the Successor Servicer. The Indenture Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with Section 3.01(b) and
Section 5.07 of the Transfer and Servicing Agreement. Notwithstanding the
foregoing, the Indenture Trustee shall, if it is legally unable so to act,
petition at the expense of the Servicer a court of competent jurisdiction to
appoint any established institution qualifying as an Eligible Servicer as the
Successor Servicer. The Indenture Trustee shall give prompt notice to each
Rating Agency and each Series Enhancer upon the appointment of a Successor
Servicer. Upon its appointment, the Successor Servicer shall be the successor in
all respects to the Servicer with respect to servicing functions under the
Transfer and Servicing Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions thereof, and all references in this Master Indenture
to the Servicer shall be deemed to refer to the Successor Servicer. In
connection with any Termination Notice, the Indenture Trustee will review any
bids which it obtains from Eligible Servicers and shall be permitted to appoint
any Eligible Servicer submitting such a bid as a Successor Servicer for
servicing compensation, subject to the limitations set forth in Section 7.02 of
the Transfer and Servicing Agreement.
(f) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Master 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 holders of at least 66
2/3% of the Outstanding Amount of the Notes of each Series, 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 the Transfer and
Servicing Agreement) or the Transaction Documents (except to the extent
otherwise provided in the Transaction Documents), or waive timely performance or
observance by the Servicer or the Transferor under the Transfer 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 and to
provide each Rating Agency with notice of such amendment, modification,
supplement or waiver.
(g) The Issuer shall deliver to the Indenture Trustee any computer
files or microfiche lists of Accounts that the Issuer has received from the
Transferor pursuant to the Transfer and Servicing Agreement. Such computer files
or microfiche lists of Accounts, as supplemented or amended from time to time,
are hereby incorporated into and made part of this Master Indenture.
Section 3.08. Negative Covenants. So long as any Notes are Outstanding,
the Issuer will not:
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(a) sell, transfer, exchange, or otherwise dispose of any part
of the Collateral except as expressly permitted by this Master
Indenture, any Indenture Supplement, the Trust Agreement or the
Transfer and Servicing Agreement;
(b) claim any credit on, or make any deduction from, the
principal and interest payable in respect of the Notes (other than
amounts properly withheld from such payments under the Code or
applicable State law) or assert any claim against any present or former
Noteholder by reason of the payment of any taxes levied or assessed
upon any part of the Collateral;
(c) (i) permit the validity or effectiveness of this Master
Indenture to be impaired, or permit the lien of this Master 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 Master Indenture except as may be
expressly permitted hereby, (ii) permit any Lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than the
Lien of this Master 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 (iii) permit the Lien
of this Master Indenture not to constitute a valid first priority
security interest in the Collateral; or
(d) voluntarily dissolve or liquidate in whole or in part.
Section 3.09. Statements as to Compliance. The Issuer will deliver to
the Indenture Trustee, within 120 days after the end of each fiscal year of the
Issuer (commencing within 120 days after the end of the fiscal year 2002), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that
(i) a review of the activities of the Issuer during the
12-month period ending at the end of such fiscal year (or in the case
of the fiscal year ending January 31, 2003, the period from the Closing
Date to January 31, 2003) and of performance under this Master
Indenture has been made and
(ii) based on such review, the Issuer has complied with all
conditions and covenants under this Master Indenture throughout such
year, or, if there has been a default in the compliance of any such
condition or covenant, specifying each such default and the nature and
status thereof.
Section 3.10. Issuer May Consolidate, Etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger (A) shall be a Person organized
and existing under the laws of the United States or any State, (B)
shall not be subject to registration under the Investment Company Act
and (C) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in a form satisfactory
to the Indenture Trustee, the obligation to make due and punctual
payment of the principal of
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and interest on all Notes and the performance of every covenant of this
Master Indenture on the part of the Issuer to be performed or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default, no Pay Out Event shall have occurred and be
continuing;
(iii) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
(A) such consolidation or merger and such supplemental indenture comply
with this Section, (B) all conditions precedent in this Section
relating to such transaction have been complied with (including any
filing required by the Exchange Act) and (C) such supplemental
indenture is duly authorized, executed and delivered and is valid,
binding and enforceable against such Person;
(iv) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(v) the Issuer shall have received a Tax Opinion and an
Opinion of Counsel dated the date of such consolidation or merger (and
shall have delivered copies thereof to the Indenture Trustee and each
Rating Agency) to the effect that such transaction will not have any
material adverse tax consequence to any Noteholder; and
(vi) any action that is necessary to maintain the lien and
security interest created by this Master 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:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted, shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States or any
State, (B) expressly assume, by a supplemental indenture hereto,
executed and delivered to the Indenture Trustee, in form satisfactory
to the Indenture Trustee, the obligation to make 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
Master 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 Master 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;
(ii) immediately after giving effect to such transaction, no
Event of Default, no Pay Out Event shall have occurred and be
continuing;
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(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received a Tax Opinion and 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;
(v) any action that is necessary to maintain the lien and
security interest created by this Master Indenture shall have been
taken; and
(vi) 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 and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
Section 3.11. Successor 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 3.10, 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 Master 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 Master Indenture or any
successor which shall theretofore have become such in the manner prescribed in
this Section shall be released from its obligations under this Master 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 3.12. No Other Business. The Issuer shall not engage in any
business other than the activities set forth in Section 2.03 of the Trust
Agreement and all activities incidental thereto or other than as required or
authorized by the terms of the Transaction Documents.
Section 3.13. No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except as expressly provided for pursuant to the terms of the
Transaction Documents and the Notes.
Section 3.14. Servicer's Obligations. The Issuer shall cause the
Servicer to comply with all of its obligations under the Transaction Documents.
Section 3.15. Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Master Indenture or the Transfer and Servicing
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.
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Section 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.17. Removal of Administrator. So long as any Notes are
outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection with such
removal.
Section 3.18. 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.
Notwithstanding the foregoing, the Issuer may make, or cause to be made, (a)
distributions as contemplated by, and to the extent funds are available for such
purpose under, the Transfer and Servicing Agreement or the Trust Agreement and
(b) payments to the Indenture Trustee pursuant to Section 6.07. The Issuer will
not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with the Transaction Documents.
Section 3.19. Notice of Events of Default. The Issuer agrees to give
the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and, immediately after obtaining knowledge of any of
the following occurrences, written notice of each default on the part of the
Servicer or the Transferor of its obligations under the Transfer and Servicing
Agreement, each default on the part of a Seller of its obligations under the
Receivables Purchase Agreement and any action taken by the Indenture Trustee
pursuant to Section 5.05.
Section 3.20. 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 Master Indenture.
Section 3.21. Representations and Warranties as to the Security
Interest of the Indenture Trustee in the Receivables. The Trust makes the
following representations and warranties to the Indenture Trustee. The
representations and warranties speak as of the execution and delivery of this
Master Indenture and as of each Closing Date. Such representations and
warranties shall survive the pledge of the Receivables by the Trust to the
Indenture Trustee and the termination of this Master Indenture and shall not be
waived by any party hereto unless the Rating Agency Condition is satisfied.
(a) This Master Indenture creates a valid and continuing
security interest (as defined in the applicable UCC) in the Collateral
in favor of the Indenture Trustee, which security interest is prior to
all other Liens, and is enforceable as such as against creditors of and
purchasers from the Trust.
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(b) The Receivables constitute "accounts" within the meaning
of the applicable UCC.
(c) The Trust has rights in or the power to transfer the
collateral and its title to the Collateral is free and clear of any
Lien, claim or encumbrance of any Person.
(d) The Trust has caused or will have caused, within ten days,
the filing of all appropriate financing statements in the proper filing
office in the appropriate jurisdictions under applicable law in order
to perfect the security interest in the Collateral granted to the
Indenture Trustee hereunder.
(e) Other than the security interest granted to the Indenture
Trustee pursuant to this Master Indenture, the Trust has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Collateral. The Trust has not authorized the filing of and
is not aware of any financing statements against the Trust that include
a description of collateral covering the Collateral other than any
financing statement relating to the security interest granted to the
Indenture Trustee hereunder or that has been terminated. The Trust is
not aware of any judgment or tax lien filings against the Trust.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of this Master Indenture. This
Master Indenture shall cease to be of further effect with respect to the Notes
except as to (a) rights of registration of transfer and exchange, (b)
substitution of mutilated, destroyed, lost or stolen Notes, (c) the rights of
Noteholders to receive payments of principal thereof and interest thereon, (d)
Sections 3.03, 3.07, 3.08, 3.11, 3.12 and 12.16, (e) the rights and immunities
of the Indenture Trustee hereunder, including the rights of the Indenture
Trustee under Section 6.07, and the obligations of the Indenture Trustee under
Section 4.02 and (f) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee and payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Master Indenture with respect to the Notes when:
(i) either
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes which have been destroyed, lost or
stolen and which have been replaced, or paid as provided in
Section 2.06, and (2) Notes for whose full payment (principal
and interest) money has theretofore been deposited in trust or
segregated and held in trust by the Indenture Trustee) have
been delivered to the Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(1) have become due and payable;
(2) will become due and payable at the
Series Final Maturity Date for such Class or Series
of Notes; or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer;
and the Issuer, in the case of (1), (2) or (3) above, has
irrevocably deposited or caused to be irrevocably deposited
with the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States (which will mature
prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to
the Indenture Trustee for cancellation when due at the Series
Final Maturity Date for such Class or Series of Notes or the
Redemption Date (if Notes shall have been called for
redemption pursuant to the related Indenture Supplement), as
the case may be;
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(ii) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements
of Section 12.01(a) and each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Master Indenture have been complied with.
Section 4.02. Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes, this Master Indenture and
the applicable Indenture Supplement, to make payments, either directly or
through any Paying Agent, as the Indenture Trustee may determine, to the
Noteholders and for the payment in respect of which such monies have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
for principal and interest; but such monies need not be segregated from other
funds except to the extent required herein or in the Transfer and Servicing
Agreement or required by law.
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ARTICLE FIVE
PAY OUT EVENTS, DEFAULTS AND REMEDIES
Section 5.01. Pay Out Events. If any one of the following events (each,
a "Trust Pay Out Event") shall occur:
(a) an Insolvency Event occurs with respect to Nordstrom,
Inc., the Transferor, the Bank, any other Account Owner or the
Servicer; provided, however, that if the Rating Agency Condition is
first satisfied with respect to an Insolvency Event with respect to
Nordstrom fsb, such Insolvency Event shall not be a Trust Pay Out
Event;
(b) a Transfer Restriction Event shall occur; or
(c) the Trust shall become subject to registration under the
Investment Company Act;
then a Pay Out Event with respect to all Series of Notes shall occur
without any notice or other action on the part of the Indenture Trustee
or the Noteholders immediately upon the occurrence of such event.
Upon the occurrence of a Pay Out Event, an Amortization Period or Early
Accumulation Period, as specified in the related Indenture Supplement, shall
commence and payment on the Notes of each Series will be made in accordance with
the terms of the related Indenture Supplement.
Section 5.02. Events of Default. "Event of Default", wherever used
herein, means with respect to any Series any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of the principal of any Note of
that Series, if and to the extent not previously paid, when the same
becomes due and payable;
(b) default in the payment of any interest on any Note of that
Series when the same becomes due and payable, and such default shall
continue for a period of 35 days;
(c) default in the observance or performance of any covenant
or agreement of the Issuer made in this Master Indenture made in
respect of the Notes of such Series (other than a covenant, or
agreement, a default in the observance or performance of which is
elsewhere in this Section specifically dealt with) (all of such
covenants and agreements in this Master Indenture which are not
expressly stated to be for the benefit of a particular Series being
deemed to be in respect of the Notes of all Series for this purpose),
and such default shall continue or not be cured for a period of 60 days
after there shall have been given, by written registered, certified
mail or overnight delivery by a nationally recognized carrier, return
receipt requested to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of the
41
Outstanding Amount of the Notes of such Series, a written notice
specifying such default 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 will continue to be materially and adversely
affected during the 60-day period;
(d) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer in an
involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, conservator, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Issuer or ordering
the winding-up or liquidation of the Issuer's affairs, and such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days;
(e) the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Issuer to the
entry of an order for relief in an involuntary case under any such law,
or the consent by the Issuer to the appointment of or the taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator or similar official of the Issuer, or the
making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay, or the
admission in writing by the Issuer of its inability to pay, its debts
as such debts become due, or the taking of action by the Issuer in
furtherance of any of the foregoing; or
(f) any additional events specified in the Indenture
Supplement related to such Series.
The Issuer shall deliver to the Indenture Trustee, within five days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default, its status and what action the Issuer is
taking or proposes to take with respect thereto.
Section 5.03. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default described in paragraph (a), (b) or (c) of Section 5.02 should
occur and be continuing with respect to a Series, then and in every such case
the Indenture Trustee or the Holders of Notes representing at least 25% of the
Outstanding Amount of such Series may declare all the Notes of such Series to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if declared by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable.
If an Event of Default described in paragraph (d) or (e) of Section
5.02 should occur and be continuing, then the unpaid principal of the Notes,
together with accrued and unpaid interest thereon through the date of
acceleration, shall automatically become, and shall be deemed to be declared,
due and payable.
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At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article provided, the
Holders of Notes representing at least 66 2/3% of the Outstanding Amount of the
Notes of such Series, by written notice to the Issuer and the Indenture Trustee
and in accordance with Section 5.13, may rescind and annul such declaration and
its consequences; provided, that:
(a) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(i) all payments of principal of and interest on all
Notes and all other amounts that would then be due hereunder
or upon such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(ii) all sums paid by the Indenture Trustee hereunder
and the reasonable compensation, expenses and disbursements of
the Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
Section 5.04. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such default
continues for a period of 35 days following the date on which such interest
became due and payable, or (ii) default is made in the payment of principal of
any Note, if and to the extent not previously paid, when the same becomes due
and payable, the Issuer will, upon demand of the Indenture Trustee, pay to it,
for the benefit of the Holders of the Notes of the affected Series, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, interest upon overdue installments of
interest, at the applicable Note Interest Rate borne by the Notes of such
Series, and in addition thereto will pay such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the monies adjudged or decreed to be
payable.
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(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.05, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders of
the affected Series, by such appropriate Proceedings as the Indenture Trustee
shall deem necessary to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Master Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Master Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes of the affected Series, or any Person having or claiming
an ownership interest in the Collateral, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or in case a
receiver, conservator, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator, custodian or other similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes of such Series, or to the
creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes of
such Series and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Noteholders of such
Series allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes of such Series in any election
of a trustee, a standby trustee or Person performing similar functions
in any such Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders of such Series
and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of Notes of such Series allowed
in any judicial Proceedings relative to the Issuer, its creditors and
its property;
and any trustee, receiver, conservator, liquidator, custodian, assignee,
sequestrator or other similar official in any such Proceeding is hereby
authorized by each of such Noteholders to make
44
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Master
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the benefit of the Holders of the Notes of the affected Series as
provided herein.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Master
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Holders of the Notes of the affected
Series, and it shall not be necessary to make any such Noteholder a party to any
such Proceedings.
Section 5.05. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing with
respect to any Series, and the Notes of such Series have been accelerated
pursuant to Section 5.03, the Indenture Trustee may do one or more of the
following (subject to Sections 5.06 and 12.16):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes of the affected Series or under this Master Indenture with
respect thereto, whether by declaration or otherwise, enforce any
judgment obtained, and collect from the Issuer and any other obligor
upon such Notes monies adjudged due;
(ii) subject to the last paragraph of this Section 5.05(a),
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Holders of the Notes of the
affected Series; and
(iii) at the direction of the Holders of a majority of the
Outstanding Amount of such Notes, cause the Issuer to sell Principal
Receivables in an amount equal to the
45
Invested Amount with respect to the accelerated Series and the related
Finance Charge Receivables (or interests therein) in accordance with
Section 5.16;
provided, however, that the Indenture Trustee may not exercise the remedy
described in subparagraph (iii) above unless one of the following conditions is
satisfied: (A) the Holders of 100% of the Outstanding Amount of the Notes of the
affected Series consent in writing thereto, (B) the Indenture Trustee determines
that any proceeds of such exercise distributable to the Noteholders of the
affected Series are sufficient to discharge in full all amounts then due and
unpaid upon the Notes for principal and interest or (C) the Indenture Trustee
determines that the Collateral may not continue to provide sufficient funds for
the payment of principal of and interest on the Notes as they would have if the
Notes had not been declared due and payable, and the Indenture Trustee obtains
the consent of Holders of at least 66 2/3% of the Outstanding Amount of each
Class of the Notes of such Series. In determining such sufficiency or
insufficiency with respect to clause (B) and (C), the Indenture Trustee may, but
need not, obtain and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose.
The remedies provided in this Section are the exclusive remedies
provided to the Noteholders with respect to an Event of Default and each of the
Noteholders (by their acceptance of their respective interests in the Notes) and
the Indenture Trustee hereby expressly waive any other remedy that may be
available under the applicable UCC.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article following the acceleration of the maturities of the Notes of the
affected Series pursuant to Section 5.03 (so long as such declaration shall not
have been rescinded or annulled), it shall pay the money or property in the
following order:
(i) to the Indenture Trustee for amounts due pursuant to
Section 6.07;
(ii) to Holders of the Class A Notes of such Series for
amounts due and unpaid on such Class A Notes for interest and
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Class A Notes for
interest and principal;
(iii) to Holders of the Class B Notes of such Series for
amounts due and unpaid on such Class B Notes for interest and
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Class B Notes for
interest and principal;
(iv) to the Holders of the Class C Notes of such Series for
amounts due and unpaid on such Class C Notes for interest and
principal, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Class C Notes for
interest and principal;
(v) to the Holders of all other Classes of Notes, if any, of
such Series for amounts due and unpaid on such Notes for interest and
principal, according to the
46
amounts due and payable on each such Class of Notes for interest and
principal, sequentially in the priority for payment under the related
Indenture Supplement; and
(vi) to the Issuer for distribution pursuant to Article Four
of the related Indenture Supplement.
(c) The Indenture Trustee may, upon notification to the Issuer, fix a
record date and payment date for any payment to Noteholders of the affected
Series pursuant to this Section. At least 15 days before such record date, the
Indenture Trustee shall mail or send by facsimile to each such Noteholder a
notice that states the record date, the payment date and the amount to be paid.
(d) In addition to the application of money or property referred to in
Section 5.05(b) for an accelerated Series, amounts then held in the Collection
Account, Special Funding Account or any Series Accounts for such Series and any
amounts available under the Series Enhancement for such Series shall be used to
make payments to the Holders of the Notes of such Series and the Series Enhancer
for such Series in accordance with the terms of this Master Indenture, the
related Indenture Supplement and the Series Enhancement for such Series.
Following the sale of any Principal Receivables and related Finance Charge
Receivables pursuant to Section 5.05(a)(iii) (or interests therein) for a Series
and the application of the proceeds of such sale to such Series and the
application of the amounts then held in the Collection Account, the Special
Funding Account and any Series Accounts for such Series as are allocated to such
Series and any amounts available under the Series Enhancement for such Series,
such Series shall no longer be entitled to any allocation of Collections or
other property constituting the Collateral under this Master Indenture and the
Notes of such Series shall no longer be Outstanding.
Section 5.06. Optional Preservation of the Collateral. If the Notes of
any Series have been declared to be due and payable under Section 5.03 following
an Event of Default and such declaration and its consequences have not been
rescinded and annulled, and the Indenture Trustee has not received directions
from the Noteholders pursuant to Section 5.12, the Indenture Trustee may, but
need not, elect to maintain possession of the portion of the Collateral which
secures such Notes and apply proceeds of the Collateral to make payments on such
Notes to the extent such proceeds are available therefor. It is the desire of
the parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes, and the
Indenture Trustee shall take such desire into account when determining whether
or not to maintain possession of the Collateral. In determining whether to
maintain possession of the Collateral, the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose.
Section 5.07. Limitation on Suits. No Noteholder shall have any right
to institute any Proceedings, judicial or otherwise, with respect to this Master
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
47
(a) the Holders of not less than 25% of the Outstanding Amount
of any affected Series of Notes have made written request to the
Indenture Trustee to institute such proceeding in its own name as
indenture trustee;
(b) such Noteholder or Noteholders has previously given
written notice to the Indenture Trustee of a continuing Event of
Default;
(c) such Noteholder or Noteholders has 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 60 days after its receipt of
such 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 60-day period by at
least 66 2/3% of the Outstanding Amount of the Notes of such Series;
it being understood and intended that no one or more Noteholders of the affected
Series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Master Indenture to affect, disturb or prejudice the
rights of any other Noteholders of such Series or to obtain or to seek to obtain
priority or preference over any other Noteholders of such Series or to enforce
any right under this Master Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders of
such affected Series, each representing less than a majority of the Outstanding
Amount of such Notes, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Master Indenture.
Section 5.08. Unconditional Rights of Noteholders to Receive Principal
and Interest. Notwithstanding any other provision in this Master Indenture, each
Holder of a Note shall have the right which is absolute and unconditional to
receive payment of the principal of and interest in respect of such Note as such
principal and interest becomes due and payable and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Noteholder.
Section 5.09. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Master Indenture and such Proceeding has been discontinued or
abandoned, or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholder shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. No right, remedy, power
or privilege herein conferred upon or reserved to the Indenture Trustee or to
the Noteholders is intended to
48
be exclusive of any other right, remedy, power or privilege, and every right,
remedy, power or privilege shall, to the extent permitted by law, be cumulative
and in addition to every other right, remedy, power or privilege given hereunder
or now or hereafter existing at law or in equity or otherwise. The assertion or
exercise of any right or remedy shall not preclude any other further assertion
or the exercise of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No failure to exercise and
no delay in exercising, on the part of the Indenture Trustee or of any
Noteholder or other Person, any right or remedy occurring hereunder upon any
Event of Default shall impair any such right or remedy or constitute a waiver
thereof 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 5.12. Rights of Noteholders to Direct Indenture Trustee.
Holders of at least 25% of the Outstanding Amount of the Notes of any affected
Series (if an Event of Default with respect to such Series has occurred and is
continuing) shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee with respect to the Notes; provided, however, that subject to Section
6.01 the Indenture Trustee shall have the right to decline any such direction if
:
(a) the Indenture Trustee, after being advised by counsel,
determines that the action so directed is in conflict with any rule of
law or with this Master Indenture, and
(b) the Indenture Trustee in good faith shall, by a
Responsible Officer of the Indenture Trustee, determine that the
Proceedings so directed would be illegal or involve the Indenture
Trustee in personal liability or be unjustly prejudicial to the
Noteholders not parties to such direction.
Section 5.13. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes of the affected Series as provided in
Section 5.03, at least 66 2/3% of the Outstanding Amount of the Notes of such
Series (or with respect to any such Series with two or more Classes, of each
Class) may, on behalf of all such Noteholders, waive by written notice to the
Issuer and the Indenture Trustee any past default with respect to such Notes and
its consequences, except a default:
(a) in the payment of the principal or interest in respect of
any Note of such Series, or
(b) in respect of a covenant or provision hereof that under
Section 10.02 cannot be modified or amended without the consent of the
Noteholder of each Outstanding Note affected.
Upon any such written waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Master Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right
49
consequent thereon. The Servicer shall give each Rating Agency prompt notice of
any waiver of an Event of Default.
Section 5.14. Undertaking for Costs. All parties to this Master
Indenture agree, and each Noteholder by its acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Master Indenture, or in any
suit against the Indenture Trustee for any action taken, suffered 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,
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 shall not apply to any suit instituted by the
Indenture Trustee, to any suit instituted by any Noteholder, or group of
Noteholders (in compliance with Section 5.08), holding in the aggregate more
than 10% of the principal balance of the Outstanding Notes of the affected
Series, or to any suit instituted by any Noteholder for the enforcement of the
payment of the principal or interest in respect of any Note on or after the
Distribution Date on which any of such amounts was due (or, in the case of
redemption, on or after the applicable Redemption Date).
Section 5.15. 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 adversely affect the covenants or the performance
of this Master Indenture; and the Issuer (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.16. Sale of Receivables.
(a) The method, manner, time, place and terms of any sale of
Receivables (or interests therein) pursuant to Section 5.05(a)(iii) shall be
commercially reasonable. The Indenture Trustee may from time to time postpone
any sale by public announcement made at the time and place of such sale. The
Indenture Trustee hereby expressly waives its right to any amount fixed by law
as compensation for any sale.
(b) The Indenture Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer in connection with any sale of Receivables
pursuant to Section 5.05(a)(iii). No purchaser or transferee at any such sale
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(c) In its exercise of the foreclosure remedy pursuant to Section
5.05(a)(iii), the Indenture Trustee shall solicit bids from Permitted Assignees
for the sale of Principal Receivables in an amount equal to the product of (i)
the Invested Amount with respect to the affected Series of Notes at the time of
sale and (ii) a fraction, the numerator of which is one and
50
the denominator of which is equal to the difference between one and the Discount
Percentage, and the related Finance Charge Receivables (or interests therein).
Section 5.17. Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Master Indenture shall not be
affected by the seeking or obtaining of or application for any other relief
under or with respect to this Master Indenture. Neither the lien of this Master
Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders
shall be impaired by the recovery of any judgment by the Indenture Trustee
against the Issuer or by the levy of any execution under such judgment upon any
portion of the Collateral or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied as specified in the
applicable Indenture Supplement.
51
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01. Duties of the Indenture Trustee.
(a) If an Event of Default has occurred and is continuing with respect
to a Series of Notes and a Responsible Officer shall have actual knowledge or
written notice of such Event of Default, the Indenture Trustee shall, prior to
the receipt of directions, if any, from at least 25% of the Outstanding Amount
of the Notes of such Series, exercise the rights and powers vested in it by this
Master Indenture and use the same degree of care and skill in their exercise as
a prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Master
Indenture, and no implied covenants or obligations shall be read into
this Master Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith or negligence on its part,
the Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Master Indenture; provided,
however, the Indenture Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Indenture Trustee which are specifically
required to be furnished pursuant to any provision of this Master
Indenture or any Indenture Supplement, shall examine them to determine
whether they substantially conform to the requirements of this Master
Indenture or any Indenture Supplement; and the Indenture Trustee shall
give prompt written notice to the Noteholders of such Series and each
Rating Agency of any material lack of conformity of any such instrument
to the applicable requirements of this Master Indenture or any
Indenture Supplement discovered by the Indenture Trustee which would
entitle a majority of the Outstanding Amount of the Notes of such
Series to take any action pursuant to this Master Indenture or any
Indenture Supplement.
(c) In case a Pay Out Event has occurred and is continuing with respect
to a Series and a Responsible Officer shall have actual knowledge or written
notice of such Pay Out Event, the Indenture Trustee shall, prior to the receipt
of directions, if any, from a majority of the Outstanding Amount of the Notes of
such Series, exercise such of the rights and powers vested in it by this Master
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(d) No provision of this Master Indenture shall be construed to relieve
the Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
52
(i) Section (b) or (d) shall not be construed to limit the
effect of Section 601(a);
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith, unless it shall be proved that the
Indenture Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the Indenture Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with this Master Indenture and/or the direction of
a majority of the Outstanding Amount of the Notes of each outstanding
Series of Notes relating to the time, method and place of conducting
any proceeding for any remedy available to the Indenture Trustee, or
for exercising any trust or power conferred upon the Indenture Trustee,
under this Master Indenture; and the Indenture Trustee shall not be
liable for any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Servicer, the
Transferor or the Trust in compliance with the terms of this Master
Indenture or any Indenture Supplement.
(e) No provision of this Master Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(f) Every provision of this Master Indenture that in any way relates to
the Indenture Trustee is subject to subsections (a), (b), (c), (d) and (e) of
this Section.
(g) Except as expressly provided in this Master Indenture, the
Indenture Trustee shall have no power to vary the Collateral, including, without
limitation, by (i) accepting any substitute payment obligation for a Receivable
initially transferred to the Trust under the Transfer and Servicing Agreement,
(ii) adding any other investment, obligation or security to the Trust or (iii)
withdrawing from the Trust any Receivable (except as otherwise provided in the
Transfer and Servicing Agreement).
(h) The Indenture Trustee shall have no responsibility or liability for
investment losses on Eligible Investments (other than Eligible Investments on
which the institution acting as Indenture Trustee is an obligor).
(i) The Indenture Trustee shall notify each Rating Agency (i) of any
change in any rating of the Notes by any other Rating Agency of which a
Responsible Officer has actual knowledge, (ii) immediately of the occurrence of
any Event of Default or Pay Out Event of which a Responsible Officer has actual
knowledge and (iii) immediately of potential Pay Out Events or Events of Default
of which a Responsible Officer has actual notice from the Servicer.
(j) For all purposes under this Master Indenture, the Indenture Trustee
shall not be deemed to have notice or knowledge of any Event of Default, Pay Out
Event or Servicer Default unless a Responsible Officer has actual knowledge
thereof or has received written notice thereof. For purposes of determining the
Indenture Trustee's responsibility and liability hereunder, any reference to an
Event of Default, Pay Out Event or Servicer Default shall be construed to refer
53
only to such event of which the Indenture Trustee is deemed to have notice as
described in this subsection.
Section 6.02. Notice of Pay Out Event or Event of Default. Upon the
occurrence of any Pay Out Event or Event of Default of which a Responsible
Officer has actual knowledge or has received notice thereof, the Indenture
Trustee shall transmit by mail to all Noteholders as their names and addresses
appear on the Note Register and the Rating Agencies, notice of such Pay Out
Event or Event of Default hereunder known to the Indenture Trustee within 30
days after it occurs or within ten Business Days after it receives such notice
or obtains actual notice, if later.
Section 6.03. Rights of Indenture Trustee. Except as otherwise provided
in Section 6.01:
(a) the Indenture Trustee may conclusively rely and shall
fully be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) whenever in the administration of this Master Indenture
the Indenture Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Indenture Trustee (unless other evidence is specifically
prescribed herein) may, in the absence of bad faith on its part, rely
upon an Officer's Certificate of the Issuer; and the Issuer shall
provide a copy of such Officer's Certificate to the Noteholders at or
prior to the time the Indenture Trustee receives such Officer's
Certificate;
(c) as a condition to the taking, suffering or omitting of any
action by it hereunder, the Indenture Trustee may consult with counsel
and the advice of such counsel or any Opinion of Counsel shall 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;
(d) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Master
Indenture or to honor the request or direction of any of the
Noteholders pursuant to this Master Indenture, unless such Noteholders
shall 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;
(e) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note 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 shall determine to make such further inquiry or
investigation, it shall be entitled to examine the
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books, records and premises of the Issuer and the Servicer, personally
or by agent or attorney;
(f) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees and the Indenture
Trustee shall not be responsible for (i) any misconduct or negligence
on the part of any agent, attorney, custodians or nominees appointed
with due care by it hereunder or (ii) the supervision of such agents,
attorneys, custodians or nominees after such appointment with due care;
(g) the Indenture Trustee shall not be liable for any actions
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights conferred upon the
Indenture Trustee by this Master Indenture; and
(h) in the event that the Indenture Trustee is also acting as
Paying Agent and Transfer Agent and Registrar, the rights and
protections afforded to the Indenture Trustee pursuant to this Article
shall also be afforded to such Paying Agent and Transfer Agent and
Registrar.
Section 6.04. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the certificate of
authentication of the Indenture Trustee, shall be taken as the statements of the
Issuer, and the Indenture Trustee assumes no responsibility for their
correctness. The Indenture Trustee makes no representation as to the validity or
sufficiency of this Master Indenture, the Notes, or any related document. The
Indenture Trustee shall not be accountable for the use or application by the
Issuer of the proceeds from the Notes.
Section 6.05. May Hold Notes. The Indenture Trustee, any Paying Agent,
Transfer Agent and Registrar or any other agent of the Issuer, in its individual
or any other capacity, may become the owner or pledgee of Notes and may
otherwise deal with the Issuer with the same rights it would have if it were not
Indenture Trustee, Paying Agent, Transfer Agent and Registrar or such other
agent.
Section 6.06. Money Held in Trust. Money held by the Indenture Trustee
in trust hereunder need not be segregated from other funds held by the Indenture
Trustee in trust hereunder except to the extent required herein or required by
law. The Indenture Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed upon in writing by the
Indenture Trustee and the Issuer.
Section 6.07. Compensation, Reimbursement and Indemnification. The
Servicer shall pay to the Indenture Trustee from time to time reasonable
compensation for all services rendered by the Indenture Trustee under this
Master Indenture (which compensation shall not be limited by any law on
compensation of a trustee of an express trust). The Servicer shall reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. Pursuant to the Transfer and Servicing Agreement, the
Issuer shall direct the Servicer to indemnify and the Servicer shall
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indemnify the Indenture Trustee against any and all loss, liability or expense
(including the fees of either in-house counsel or outside counsel, but not both)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer and the Servicer promptly of any claim for which it may seek indemnity.
Failure by the Indenture Trustee to so notify the Issuer and the Servicer shall
not relieve the Issuer or the Servicer of its obligations hereunder unless such
loss, liability or expense could have been avoided with such prompt notification
and then only to the extent of such loss, expense or liability which could have
been so avoided. The Servicer shall defend any claim against the Indenture
Trustee; the Indenture Trustee may have separate counsel and, if it does, the
Servicer shall pay the fees and expenses of such counsel. The Servicer need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
The Servicer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Master Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.02(d) or (e) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
Notwithstanding anything herein to the contrary, the Indenture
Trustee's right to enforce any of the Servicer's payment obligations pursuant to
this Section shall be subject to the provisions of Section 12.16.
Section 6.08. Replacement of Indenture Trustee. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section. The Indenture Trustee may
resign at any time by giving 30 days' written notice to the Issuer. Holders of a
majority of the Outstanding Amount of the Notes, upon delivery of notice of such
removal to the Issuer, may remove the Indenture Trustee by so notifying the
Indenture Trustee and may appoint a successor Indenture Trustee. The Issuer
shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) an Insolvency Event with respect to the Indenture Trustee
occurs; or
(iii) the Indenture Trustee otherwise becomes legally unable to act.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly appoint a successor Indenture Trustee. The Issuer shall furnish each
Rating Agency with a copy of any notice of resignation or removal of a retiring
Indenture Trustee pursuant to this Section promptly after receiving such notice,
in the case of a resignation by a retiring Indenture Trustee, or delivering such
notice, in the case of a removal of a retiring Indenture Trustee by the Issuer
or Holders of a majority of the Outstanding Amount of the Notes.
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A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, the Administrator and the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the rights,
powers and duties of the Indenture Trustee under this Master Indenture. The
successor Indenture Trustee shall mail a notice of its succession to all of the
Noteholders and each Rating Agency. The retiring Indenture Trustee shall
promptly transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority of the Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Indenture
Trustee; provided that such corporation or banking association shall be
otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall
give each Rating Agency notice of any such transaction.
In case at the time such successor or successors by merger, conversion,
consolidation or transfer to the Indenture Trustee shall succeed to the trusts
created by this Master Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor Indenture Trustee and deliver
such Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may authenticate
such Notes in the name of the successor to the Indenture Trustee; and in all
such cases such certificates shall have the full force which it is anywhere in
the Notes or in this Master Indenture provided that the certificate of the
Indenture Trustee shall have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Master Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Collateral, and to vest
in
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such Person or Persons, in such capacity and for the benefit of the Noteholders,
such title to the Collateral, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Collateral or
any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Master
Indenture and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Master Indenture, specifically including
every provision of this Master Indenture relating to the conduct of, affecting
the liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Master Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
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Section 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and its long-term
unsecured debt shall be rated at least Baa3 by Moody's, at least BBB- by
Standard & Poor's and, if rated by Fitch, at least BBB-by Fitch. The Indenture
Trustee shall comply with TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
Section 6.12. Preferential Collection of Claims Against. The Indenture
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 6.13. Tax Returns. In the event the Trust 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 with instruction to the Owner
Trustee for signature at least five days before such tax returns are due to be
filed and shall file such returns. The Servicer, 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 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 Trust, 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 Trust 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 6.14. Representations and Covenants of the Indenture Trustee.
The Indenture Trustee represents, warrants and covenants that:
(a) it is a national banking association duly organized and
validly existing under the federal laws of the United States;
(b) it has full power and authority to deliver and perform
this Master Indenture and has taken all necessary action to authorize
the execution, delivery and performance by it of this Master Indenture
and other Transaction Documents to which it is a party; and
(c) each of this Master Indenture and other Transaction
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.
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Section 6.15. Custody of the Collateral. The Indenture Trustee shall
hold such of the Collateral as consists of instruments, deposit accounts,
negotiable documents, money, goods, letters of credit, and advices of credit in
the State of Minnesota. The Indenture Trustee shall hold such of the Collateral
as constitutes investment property through a securities intermediary, which
securities intermediary shall agree with the Indenture Trustee that (i) such
investment property shall at all times be credited to a securities account of
the Indenture Trustee, (ii) such securities intermediary shall treat the
Indenture Trustee as entitled to exercise the rights that comprise each
financial asset credited to such securities account, (iii) all property credited
to such securities account shall be treated as financial assets, (iv) such
securities intermediary shall comply with entitlement orders originated by the
Indenture Trustee without the further consent of any other person or entity, (v)
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, (vi) such securities accounts
and the 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 it (other than the Indenture Trustee),
and (vii) such agreement shall be governed by the laws of the State of New York.
Terms used in this Section that are defined in the New York UCC and not
otherwise defined herein shall have the meaning set forth in the UCC of the
State of New York. Except as permitted by this Section, the Indenture Trustee
shall not hold any part of the Collateral through an agent or a nominee.
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ARTICLE SEVEN
NOTEHOLDERS' LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses
of Noteholders. The Issuer will furnish or cause to be furnished to the
Indenture Trustee (i) upon each transfer of a Note, a list, in such form as the
Indenture Trustee may reasonably require, of the names, addresses and taxpayer
identification numbers of the Noteholders as they appear on the Note Register as
of the most recent Record Date, and (ii) at such other times, as the Indenture
Trustee may request in writing, within ten days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
ten days prior to the time such list is furnished; provided, however, that for
so long as the Indenture Trustee is the Transfer Agent and Registrar, no such
list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.01 and the names, addresses and taxpayer identification numbers of the
Noteholders received by the Indenture Trustee in its capacity as Transfer Agent
and Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) Noteholders may communicate, pursuant to TIA Section 312(b), with
other Noteholders with respect to their rights under this Master Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Transfer Agent and
Registrar shall have the protection of TIA Section 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of 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
15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Master Indenture as may be required from time to time by such
rules and regulations; and
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(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders) such summaries of
any information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this subsection as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on January 31 of each year.
Section 7.04. Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each March 31 beginning with March 31, 2003, the
Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
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ARTICLE EIGHT
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein and in the related Indenture Supplement, the Indenture Trustee
may demand payment or delivery of, and shall receive and collect, directly and
without intervention or assistance of any fiscal agent or other intermediary,
all money and other property payable to or receivable by the Indenture Trustee
pursuant to this Master Indenture. The Indenture Trustee shall hold all such
money and property received by it in trust for the Noteholders and shall apply
it as provided in this Master Indenture. Except as otherwise expressly provided
in this Master Indenture, if any default occurs in the making of any payment or
performance under the Transfer and Servicing Agreement or any other Transaction
Document, the Indenture Trustee may, and upon the request of at least a majority
of the Holders of the Outstanding Amount of the Notes of an affected Series
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Pay Out Event or a Default or Event of Default under this Master Indenture and
to proceed thereafter as provided in Article Five.
Section 8.02. Rights of Noteholders. The Collateral shall secure the
obligation of the Trust to pay to the Holders of the Notes of each Series
principal and interest and other amounts payable pursuant to this Master
Indenture and the related Indenture Supplement. Except as specifically set forth
in the Indenture Supplement with respect thereto, the Notes of any Series or
Class shall not have rights to payment from any Series Account or Series
Enhancement allocated for the benefit of any other Series or Class.
Section 8.03. Establishment of Collection Account and Special Funding
Account. The Servicer, for the benefit of the Noteholders, shall establish and
maintain with the Indenture Trustee or its nominee in the name of the Indenture
Trustee, on behalf of the Trust, one or more Qualified Accounts (including any
subaccount thereof) bearing a designation clearly indicating that the funds and
other property credited thereto are held for the benefit of the Noteholders
(collectively, the "Collection Account"). The Indenture Trustee shall possess
all right, title and interest in all monies, instruments, investment property,
documents, certificates of deposit and other property credited from time to time
to the Collection Account and in all proceeds, earnings, income, revenue,
dividends and distributions thereof for the benefit of the Noteholders.
The Collection Account shall be under the sole dominion and control of
the Indenture Trustee for the benefit of the Noteholders. Except as expressly
provided in this Master Indenture and the Transfer and Servicing Agreement, the
Servicer agrees that it shall have no right of setoff or banker's lien against,
and no right to otherwise deduct from, any funds held in the Collection Account
for any amount owed to it by the Indenture Trustee, the Trust, any Noteholder or
any Series Enhancer. If, at any time, the Collection Account ceases to be a
Qualified Account, the Indenture Trustee (or the Servicer on its behalf) shall
within ten Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Rating Agency may consent) establish a new Collection Account
meeting the conditions specified above, transfer any monies, documents,
instruments, investment property, certificates of deposit and other property to
such new Collection Account and from the date such new Collection Account is
established, it shall
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be the "Collection Account". Pursuant to the authority granted to the Servicer
in Section 3.01(b) of the Transfer and Servicing Agreement, the Servicer shall
have the power, revocable by the Indenture Trustee, to instruct the Indenture
Trustee to make withdrawals and payments from the Collection Account for the
purposes of carrying out the Servicer's or the Indenture Trustee's duties
hereunder and under the Transfer and Servicing Agreement, as applicable. The
Servicer shall reduce deposits into the Collection Account payable by the
Transferor on any Deposit Date to the extent the Transferor is entitled to
receive funds from the Collection Account on such Deposit Date, but only to the
extent such reduction would not reduce the Transferor Interest to an amount less
than the Required Transferor Interest.
Funds on deposit in the Collection Account (other than investment
earnings and amounts deposited pursuant to Section 2.06, 6.01 or 7.01 of the
Transfer and Servicing Agreement or Section 11.02 of this Master Indenture)
shall at the written direction of the Servicer be invested by the Indenture
Trustee in Eligible Investments selected by the Servicer. All such Eligible
Investments shall be held by the Indenture Trustee for the benefit of the
Noteholders pursuant to Section 6.15. Investments of funds representing
Collections collected during any Monthly Period shall be invested in Eligible
Investments that will mature so that such funds will be available no later than
the close of business on each monthly Transfer Date following such Monthly
Period. No such Eligible Investment shall be disposed of prior to its maturity.
In the event that the Indenture Trustee does not receive written direction from
the Servicer, funds on deposit in the Collection Account shall be deposited by
the Indenture Trustee in money market funds having at the time of the Trust's
investment therein, a rating in the highest rating category of each Rating
Agency (including funds for which the Indenture Trustee or any of its Affiliates
is an investment manager or advisor). On each Distribution Date, all interest
and other investment earnings (net of losses and investment expenses) on funds
on deposit in the Collection Account shall be paid to the Transferor, except as
otherwise specified in any Indenture Supplement. The Indenture Trustee shall
bear no responsibility or liability for any losses resulting from investment or
reinvestment of any funds in accordance with this Section nor for the selection
of Eligible Investments in accordance with the provisions of this Master
Indenture and any Indenture Supplement (other than Eligible Investments on which
the institution acting as Indenture Trustee is an obligor).
The Servicer, for the benefit of the Noteholders, shall establish and
maintain with the Indenture Trustee or its nominee in the name of the Indenture
Trustee, on behalf of the Trust, a Qualified Account (including any subaccounts
thereof) bearing a designation clearly indicating that the funds and other
property credited thereto are held for the benefit of the Noteholders (the
"Special Funding Account"). The Indenture Trustee shall possess all right, title
and interest in all monies, instruments, investment property, documents,
certificates of deposit and other property credited from time to time to the
Special Funding Account and in all proceeds, dividends, distributions, earnings,
income and revenue thereof for the benefit of the Noteholders. The Special
Funding Account shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Noteholders. Except as expressly provided in this
Master Indenture and the Transfer and Servicing Agreement, the Servicer shall
have no right of setoff or banker's lien against, and no right to otherwise
deduct from, any funds and other property held in the Special Funding Account
for any amount owed to it by the Indenture Trustee, the Trust, any Noteholder or
any Series Enhancer. If, at any time, the Special Funding Account ceases to be a
Qualified Account, the Indenture Trustee (or the Servicer on its behalf) shall
within ten Business
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Days (or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Special Funding Account meeting the
conditions specified above, transfer any monies, documents, instruments,
investment property, certificates of deposit and other property to such new
Special Funding Account and from the date such new Special Funding Account is
established, it shall be the "Special Funding Account."
Funds on deposit in the Special Funding Account shall at the written
direction of the Servicer be invested by the Indenture Trustee in Eligible
Investments selected by the Servicer. All such Eligible Investments shall be
held by the Indenture Trustee for the benefit of the Noteholders pursuant to
Section 6.15. Funds on deposit in the Special Funding Account on any
Distribution Date will be invested in Eligible Investments that will mature so
that such funds will be available no later than the close of business on the
Transfer Date following such Monthly Period. No such Eligible Investment shall
be disposed of prior to its maturity. In the event that the Indenture Trustee
does not receive written direction from the Servicer, funds on deposit in the
Collection Account shall be deposited by the Indenture Trustee in money market
funds having at the time of the Trust's investment therein, a rating in the
highest rating category of each Rating Agency (including funds for which the
Indenture Trustee or any of its Affiliates is an investment manager or advisor).
On each Distribution Date, all interest and other investment earnings (net of
losses and investment expenses) on funds on deposit in the Special Funding
Account shall be treated as Collections of Finance Charge Receivables with
respect to the last day of the related Monthly Period except as otherwise
specified in the related Indenture Supplement. On each Business Day on which
funds are on deposit in the Special Funding Account and on which no Series is in
an Accumulation Period or Amortization Period, the Servicer shall determine the
amount (if any) by which the Transferor Interest exceeds the Required Transferor
Interest on such date and shall instruct the Indenture Trustee to withdraw any
such excess from the Special Funding Account and pay such amount to the Holders
of the Transferor Certificates; provided, however, that, if an Accumulation
Period or Amortization Period has commenced and is continuing with respect to
one or more outstanding Series, any funds on deposit in the Special Funding
Account shall be treated as Shared Principal Collections and shall be allocated
and distributed in accordance with Section 8.05 and the terms of each Indenture
Supplement.
Section 8.04. Collections and Allocations.
(a) The Servicer will apply or will instruct the Indenture Trustee to
apply all funds on deposit in the Collection Account as described in this
Article and in each Indenture Supplement. Except as otherwise provided below,
the Servicer shall deposit Collections into the Collection Account as promptly
as possible after the Date of Processing of such Collections, but in no event
later than the second Business Day following the date of processing. Subject to
the terms of any Indenture Supplement, but notwithstanding anything else in this
Master Indenture or the Transfer and Servicing Agreement to the contrary, if one
or more of the following conditions is satisfied: (i) Nordstrom fsb remains the
Servicer; Nordstrom guarantees the performance of the Servicer's obligations
(unless the Rating Agencies shall consent to the deletion of such guarantee) and
achieves and maintains a commercial paper rating of not less than A-1 by
Standard & Poor's, not less than Prime-1 by Moody's and, if rated by Fitch, not
less than F-1 by Fitch, and Nordstrom fsb remains a wholly owned subsidiary
(directly or indirectly) of Nordstrom, Inc. and in the event that there is any
material change in the financing relationship between Nordstrom fsb and
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Nordstrom, Inc., (A) Nordstrom fsb shall have notified each Rating Agency and
(B) the Rating Agency Condition shall be satisfied with respect to such material
change, or (ii) any other arrangements are made such that the Rating Agency
Condition is satisfied with respect thereto, and for two Business Days following
any reduction of any such rating or change in ownership, the Servicer need not
make the daily deposits of Collections into the Collection Account as provided
in the preceding sentence, but may make a single deposit in the Collection
Account in immediately available funds not later than 1:00 p.m., New York City
time, on the Transfer Date immediately preceding the Distribution Date following
the Monthly Period with respect to which such deposit relates. Subject to the
first proviso in Section 8.05, but notwithstanding anything else in this Master
Indenture or the Transfer and Servicing Agreement to the contrary, with respect
to any Monthly Period, whether the Servicer is required to make deposits of
collections pursuant to the first or the second preceding sentence, (i) the
Servicer will only be required to deposit Collections into the Collection
Account up to the aggregate amount of Collections required to be deposited into
any Series Account or, without duplication, distributed on or prior to the
related Distribution Date to Noteholders or to any Series Enhancer pursuant to
the terms of any Indenture Supplement or Enhancement Agreement and (ii) if at
any time prior to such Distribution Date the amount of Collections deposited in
the Collection Account exceeds the amount required to be deposited pursuant to
clause (i) above, the Servicer will be permitted to cause the Indenture Trustee
to withdraw the excess from the Collection Account and pay such amounts pursuant
to the terms of the Transaction Documents. Subject to the immediately preceding
sentence, the Servicer may retain its Servicing Fee with respect to a Series and
shall not be required to deposit it in the Collection Account. To the extent
that, in accordance with this subsection, the Servicer has retained amounts
which would otherwise be required to be deposited into the Collection Account or
any Series Account with respect to any Monthly Period, the Servicer shall be
required to deposit such amounts in the Collection Account or such Series
Account on the related Transfer Date to the extent necessary to make required
distributions on the related Distribution Date, including any amounts which are
required to be applied as Reallocated Principal Collections, and pay any amounts
remaining after making such deposit pursuant to the terms of the Transaction
Documents.
(b) Collections of Finance Charge Receivables, Principal Receivables
and Defaulted Receivables will be allocated to each Series of Notes and to the
holders of the Transferor Certificates in accordance with this Article and each
Indenture Supplement and amounts so allocated to any Series will not, except as
specified in the related Indenture Supplement, be available to the Noteholders
of any other Series. Allocations of the foregoing amounts between the Holders of
the Notes and the holders of the Transferor Certificates, among the Series and
among the Classes in any Series, shall be set forth in the related Indenture
Supplement or Indenture Supplements. In-store payments made with respect to
Finance Charge Receivables and Principal Receivables shall be treated as
Collections and be deemed to be received by the Servicer on the day such payment
was made by the cardholder.
Section 8.05. Shared Principal Collections. On each Distribution Date,
(i) the Servicer shall allocate Shared Principal Collections to each Principal
Sharing Series, pro rata, in proportion to the Principal Shortfalls, if any,
with respect to each such Series and (ii) the Servicer shall cause the Indenture
Trustee to withdraw from the Collection Account and pay to the holders of the
Transferor Certificates an amount equal to the excess, if any, of Shared
Principal Collections over Principal Shortfalls; provided, however, that if the
Transferor Interest
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as of such Distribution Date (determined after giving effect to the Principal
Receivables or Participation Interests transferred to the Trust on such date) is
less than the Required Transferor Interest, the Servicer will not direct the
Indenture Trustee to distribute to the holders of the Transferor Certificates
any such amounts that otherwise would be distributed to the holders of the
Transferor Certificates, but shall deposit such funds in the Special Funding
Account. The Transferor may, at its option, instruct the Indenture Trustee to
deposit Shared Principal Collections which are otherwise payable to the holders
of the Transferor Certificates pursuant to the provisions set forth above into
the Special Funding Account. Notwithstanding the foregoing, a Group of Series
may specify in their related Indenture Supplements that Shared Principal
Collections from such Series shall be allocated as provided above but only among
the Series in such Group.
Section 8.06. Additional Withdrawals from the Collection Account. On or
before the Determination Date with respect to any Monthly Period, the Servicer
may direct the Indenture Trustee in writing to withdraw from the Collection
Account any amounts it has determined do not constitute Trust Assets and were
erroneously deposited into the Collection Account, due to an accounting error or
otherwise.
Section 8.07. Allocation of Collateral to Series or Groups. To the
extent so provided in the Indenture Supplement for any Series or in an Indenture
Supplement otherwise executed pursuant to Section 10.01, Receivables conveyed to
the Trust pursuant to Section 2.01 of the Transfer and Servicing Agreement and
Receivables or Participation Interests conveyed to the Trust pursuant to Section
2.09 of the Transfer and Servicing Agreement or any Participation Interest
Supplement, and all Collections received with respect thereto may be allocated
or applied in whole or in part to one or more Series or Groups as may be
provided in such Indenture Supplement; provided, however, that any such
allocation or application shall be effective only upon satisfaction of the
following conditions:
(a) on or before the fifth Business Day immediately preceding
such allocation, the Servicer shall have given the Indenture Trustee
and each Rating Agency written notice of such allocation;
(b) the Rating Agency Condition shall have been satisfied with
respect to such allocation; and
(c) the Servicer shall have delivered to the Indenture Trustee
an Officer's Certificate, dated the date of such allocation, to the
effect that the Servicer reasonably believes that such allocation will
not result in an Adverse Effect.
Any such Indenture Supplement may provide that (i) such allocation to
one or more particular Series or Groups may terminate upon the occurrence of
certain events specified therein and (ii) upon the occurrence of any such event,
such assets and any Collections with respect thereto, shall be reallocated to
other Series or Groups or to all Series, all as shall be provided in such
Indenture Supplement.
Section 8.08. Excess Finance Charge Collections. On each Distribution
Date, the Servicer shall (i) allocate Excess Finance Charge Collections to each
Excess Allocation Series,
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pro rata, in proportion to the Finance Charge Shortfalls, if any, with respect
to each such Series and (ii) withdraw from the Collection Account and pay to the
Holders of the Transferor Certificates an amount equal to the excess, if any, of
Excess Finance Charge Collections over Finance Charge Shortfalls; provided,
however, that the sharing of Excess Finance Charge Collections among Series will
continue only until such time, if any, at which the Transferor shall deliver to
the Indenture Trustee an Officer's Certificate to the effect that, in the
reasonable belief of the Transferor, the continued sharing of Excess Finance
Charge Collections among Series would have adverse regulatory implications with
respect to an Account Owner. Notwithstanding the foregoing, a Group of Series
may specify in their related Indenture Supplements that Excess Finance Charge
Collections from such Series shall be allocated as provided above but only among
the Series in such Group.
Section 8.09. Release of Collateral; Eligible Loan Documents.
(a) The Indenture Trustee may, and when required by the provisions of
this Master Indenture shall, execute instruments to release property from the
lien of this Master 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 Master Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(b) In order to facilitate the servicing of the Receivables by the
Servicer, the Indenture Trustee upon Issuer Order shall authorize the Servicer
to execute in the name and on behalf of the Indenture Trustee instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
other comparable instruments with respect to the Receivables (and the Indenture
Trustee shall execute any such documents on request of the Servicer), subject to
the obligations of the Servicer under the Transfer and Servicing Agreement.
(c) The Indenture Trustee shall, at such time as there are no Notes
outstanding, release and transfer, without recourse, all of the Collateral that
secured the Notes (other than any cash held for the payment of the Notes
pursuant to Section 4.02). The Indenture Trustee shall release property from the
lien of this Master Indenture pursuant to this Section only upon receipt of an
Issuer Order accompanied by an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
12.01.
(d) Notwithstanding anything to the contrary in this Master Indenture,
the Transfer and Servicing Agreement and the Trust Agreement, immediately prior
to the release of any portion of the Collateral or any funds on deposit in the
Series Accounts pursuant to this Master Indenture, the Indenture Trustee shall
remit to the Transferor for its own account any funds that, upon such release,
would otherwise be remitted to the Issuer.
Section 8.10. Opinion of Counsel. The Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.09(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, as a condition to such action, an
Opinion of Counsel, in form and substance reasonably
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satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for the
Notes or the rights of the Noteholders in contravention of the provisions of
this Master Indenture; provided, however, that such Opinion of Counsel shall not
be required to express an opinion as to the fair value of the Collateral. The
Indenture Trustee and 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.
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ARTICLE NINE
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
Section 9.01. Distributions and Reports to Noteholders. Distributions
shall be made to, and reports shall be provided to, Noteholders as set forth in
the applicable Indenture Supplement. The identity of the Noteholders with
respect to distributions and reports shall be determined according to the
immediately preceding Record Date.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes, but upon
satisfaction of the Rating Agency Condition, the Issuer and the Indenture
Trustee, when authorized by an Issuer Order, at any time and from time to time,
may enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the TIA as in force at the date of the execution thereof),
in form satisfactory to the Indenture Trustee, for any of the following
purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Master Indenture, or better to
assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Master
Indenture, or to subject to the lien of this Master Indenture
additional property;
(ii) to evidence the succession, in compliance with Section
3.11, of another Person to the Issuer, and the assumption by any such
successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Master Indenture or in any supplemental
indenture; provided that such action shall not adversely affect the
interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor indenture trustee with respect to
the Notes and to add to or change any of the provisions of this Master
Indenture as shall be necessary to facilitate the administration of the
trusts hereunder by more than one indenture trustee, pursuant to the
requirements of Article Six;
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(vii) to modify, eliminate or add to the provisions of this
Master Indenture to such extent as shall be necessary to effect the
qualification of this Master Indenture under the TIA or under any
similar federal statute hereafter enacted and to add to this Master
Indenture such other provisions as may be expressly required by the
TIA; or
(viii) to provide for the issuance of one or more new Series
of Notes, in accordance with the provisions of Section 2.12.
The Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any Noteholders of any Series then
Outstanding but upon satisfaction of the Rating Agency Condition with respect to
the Notes of all Series, enter into an indenture or supplemental indentures
hereto for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Master Indenture or of modifying in
any manner the rights of the Holders of the Notes under this Master Indenture;
provided, however that (i) the Transferor shall have delivered to the Indenture
Trustee an Officer's Certificate, dated the date of any such action, stating
that all requirements for such amendments contained in this Master Indenture
have been met and the Transferor reasonably believes that such action will not
result in an Adverse Effect, (ii) a Tax Opinion shall have been delivered to
each Rating Agency and (iii) such amendment does not affect the rights, duties,
permitted activities or obligations of the Servicer, the Master Indenture
Trustee or the Owner Trustee hereunder. Additionally, notwithstanding the
preceding sentence, the Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, without the consent of any Noteholders of any Series then
Outstanding or the Series Enhancers for any Series, enter into an indenture or
supplemental indentures hereto 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, and (ii) to avoid the imposition of
state or local income or franchise taxes imposed on the Trust's property or its
income; provided, however, that (A) the Transferor delivers to the Indenture
Trustee and the Owner Trustee an Officer's Certificate to the effect that the
proposed amendments meet the requirements set forth in this subsection, (B) the
Rating Agency Condition will have been satisfied and (C) such amendment does not
affect the rights, duties or obligations of the Indenture Trustee or the Owner
Trustee hereunder. The amendments which the Transferor may make without the
consent of Noteholders pursuant to the preceding sentence may include, without
limitation, the addition of a sale of Receivables.
Section 10.02. Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
upon satisfaction of the Rating Agency Condition and with the consent of the
Holders of at least 66 2/3% of the Outstanding Amount of the Notes of each
adversely affected Series of Notes, by Act of such Holders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or supplemental
indentures hereto for the purpose of adding any provisions to, changing in any
manner or eliminating any of the provisions of this Master Indenture or of
modifying in any manner the rights of such Noteholders under this Master
Indenture; provided, however that no
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such supplemental indenture shall, without the consent of the Holder of each
outstanding Note affected thereby:
(a) change the due date of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the
interest rate specified thereon or the redemption price with respect
thereto or change any place of payment where, or the coin or currency
in which, any Note or any interest thereon is payable;
(b) impair the right to institute suit for the enforcement of
the provisions of this Master Indenture requiring the application of
funds available therefor, as provided in Article Five, to the payment
of any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the
Redemption Date);
(c) reduce the percentage of the Outstanding Amount of the
Notes of any Series the consent of the Holders of which is required for
any such supplemental indenture, or the consent of the Holders of which
is required for any waiver of compliance with certain provisions of
this Master Indenture or certain defaults hereunder and their
consequences as provided for in this Master Indenture;
(d) reduce the percentage of the aggregate outstanding amount
of any Notes, the consent of the Holders of which is required to direct
the Indenture Trustee to sell or liquidate the Collateral if the
proceeds of such sale would be insufficient to pay the principal amount
and accrued but unpaid interest on the outstanding Notes of such
Series;
(e) decrease the percentage of the aggregate principal amount
of the Notes required to amend the sections of this Master Indenture
which specify the applicable percentage of the aggregate principal
amount of the Notes of such Series necessary to amend the Indenture or
any Transaction Documents which require such consent;
(f) modify or alter the provisions of this Master Indenture
prohibiting the voting of Notes held by the Trust, any other obligor on
the Notes, a Seller or any Affiliate thereof; or
(g) permit the creation of any Lien ranking prior to or on a
parity with the lien of this Master Indenture with respect to any part
of the Collateral for any Notes or, except as otherwise permitted or
contemplated herein, terminate the Lien of this Master Indenture on any
such Collateral at any time subject hereto or deprive the Holder of any
Note of the security provided by the Lien of this Master Indenture.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
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Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates written notice setting forth in general terms the substance of
such supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 10.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created by
this Master Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Master Indenture. The Indenture Trustee or Owner
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that affects the Indenture Trustee's or Owner Trustee's (as such or in
its individual capacity) own rights, duties, liabilities, benefits, protections,
privileges or immunities under this Master Indenture or otherwise.
Section 10.04. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture under this Article, this Master Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes, and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 10.05. Conformity With Trust Indenture Act. Every amendment of
this Master Indenture and every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the TIA as then in effect so long
as this Master Indenture shall then be qualified under the TIA.
Section 10.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Notes so modified as to conform, in the opinion of the Indenture Trustee and
the Issuer, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Indenture Trustee in exchange
for the outstanding Notes.
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ARTICLE ELEVEN
TERMINATION
Section 11.01. Termination of Trust. The Trust 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 11.02(b), as provided in the Trust Agreement.
Section 11.02. Final Distribution.
(a) The Servicer shall give the Indenture Trustee at least 30 days'
prior notice of the Distribution Date on which the Noteholders of any Series or
Class may surrender their Notes for payment of the final distribution on and
cancellation of such Notes (or, in the event of a final distribution resulting
from the application of Section 2.06, 6.01 or 7.01 of the Transfer and Servicing
Agreement, notice of such Distribution Date promptly after the Servicer has
determined that a final distribution will occur, if such determination is made
less than 30 days prior to such Distribution Date). Such notice shall be
accompanied by an Officer's Certificate setting forth the information specified
in Section 3.05 of the Transfer and Servicing Agreement covering the period
during the then-current calendar year through the date of such notice. 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 or Class specifying (i) the date
upon which final payment of such Series or Class will be made upon presentation
and surrender of Notes of such Series or Class 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 Transfer
Agent and 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 or Class (or the termination of the Trust), except as otherwise provided
in this paragraph, all funds then on deposit in the Collection Account and any
Series 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 months after the date
specified in the notice from the Indenture Trustee described in Section 11.02(a)
the Indenture Trustee shall give a second notice to the remaining such
Noteholders to surrender their Notes for cancellation and receive the final
distribution with respect thereto (which surrender and payment, in the case of
Bearer Notes, shall be outside the United States). If within one year after the
second notice all such Notes shall not have been surrendered for cancellation,
the Indenture Trustee may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining such Noteholders concerning
surrender of their Notes, and the cost thereof shall be paid out of the funds in
the Collection Account or
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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 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 11.03. Termination Distributions. Upon the termination of the
Trust pursuant to the terms of the Trust Agreement, the Indenture Trustee shall
assign and convey to the holders of the Transferor Certificates or any of their
designees, without recourse, representation or warranty, all right, title and
interest of the Trust in the Receivables, whether then existing or thereafter
created, and Recoveries related thereto, all monies due or to become due and all
amounts received or receivable with respect thereto (including all monies then
held in the Collection Account or any Series Account) and all proceeds thereof,
except for amounts held by the Indenture Trustee pursuant to Section 11.02(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 holders of the Transferor Certificates to vest in the holders of the
Transferor Certificates or any of their designees all right, title and interest
which the Indenture Trustee had in the Collateral and such other property.
Section 11.04. Defeasance. Notwithstanding anything to the contrary in
this Master Indenture and unless otherwise specified with respect to any Series
in the applicable Indenture Supplement:
(a) The Issuer may at its option be discharged from its
obligations hereunder with respect to any Series or all outstanding
Series (each, a "Defeased Series") on the date the applicable
conditions set forth in Section 11.04(c) are satisfied (a
"Defeasance"); provided, however, that the following rights,
obligations, powers, duties and immunities shall survive with respect
to each Defeased Series until otherwise terminated or discharged
hereunder: (i) the rights of the Holders of Notes of the Defeased
Series to receive, solely from the trust fund provided for in Section
11.04(c), payments in respect of principal of and interest on such
Notes when such payments are due; (ii) the Issuer's obligations with
respect to such Notes under Sections 2.05 and 2.06; (iii) the rights,
powers, trusts, duties, and immunities of the Indenture Trustee, the
Paying Agent and the Registrar hereunder; and (iv) Section 12.16 and
this Section.
(b) Subject to Section 11.04(c), the Issuer at its option may
cause Collections allocated to each Defeased Series and available to
purchase additional Receivables to be applied to purchase Eligible
Investments rather than additional Receivables.
(c) The following shall be the conditions precedent to any
Defeasance under Section 11.04(a):
(i) the Issuer irrevocably shall have deposited
or caused to be deposited with the Indenture Trustee (such
deposit to be made from other than the Issuer's or any
Affiliate of the Issuer's funds), under the terms of an
irrevocable trust agreement in form and substance satisfactory
to the Indenture Trustee, as trust funds in trust for making
the payments described below, (A) Dollars in an
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amount equal to, or (B) Eligible Investments which through the
scheduled payment of principal and interest in respect thereof
will provide, not later than the due date of payment thereon,
money in an amount equal to, or (C) a combination thereof, in
each case sufficient to pay and discharge (without relying on
income or gain from reinvestment of such amount), and which
shall be applied by the Indenture Trustee to pay and
discharge, all remaining scheduled interest and principal
payments on all outstanding Notes of each Defeased Series on
the dates scheduled for such payments in this Master Indenture
and the applicable Indenture Supplements and all amounts owing
to the Series Enhancers with respect to each Defeased Series;
(ii) a statement from a firm of nationally
recognized independent public accountants (who may also render
other services to the Issuer) to the effect that such deposit
is sufficient to pay the amounts specified in clause (i)
above;
(iii) prior to its exercise of its right pursuant
to this Section with respect to any Defeased Series to
substitute money or Eligible Investments for Receivables, the
Issuer shall have delivered to the Indenture Trustee an
Opinion of Counsel to the effect contemplated by clause (ii)
of the definition of the term "Tax Opinion" (the preparation
and delivery of which shall not be at the expense of the
Indenture Trustee) with respect to such deposit and
termination of obligations, and an Opinion of Counsel to the
effect that such deposit and termination of obligations will
not result in the Trust being required to register as an
investment company under the Investment Company Act;
(iv) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate of the Transferor
stating that the Transferor reasonably believes that such
deposit and termination of obligations will not, based on the
facts known to such officer at the time of such certification,
then cause a Pay Out Event with respect to any Series or any
event that, with the giving of notice or the lapse of time,
would result in the occurrence of a Pay Out Event with respect
to any Series; and
(v) the Rating Agency Condition shall have been
satisfied and the Issuer shall have delivered copies of such
written notice to the Servicer and the Indenture Trustee.
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ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Master Indenture, the
Issuer shall furnish to the Indenture Trustee (i) an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Master
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case of
any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Master Indenture, no additional
certificate or opinion need be furnished.
Except to the extent that the Authorized Officer of the Issuer executes
the certificate on behalf of the Issuer, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this Master
Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Master
Indenture, the Issuer shall, in addition to any obligation imposed in Section
12.01(a) or elsewhere in this Master Indenture, furnish to the Indenture Trustee
an Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such deposit)
to the Issuer of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (i)
above, the Issuer shall also deliver to the Indenture Trustee
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(if required by the TIA) an Independent Certificate as to the same
matters, if the fair value to the Issuer of the securities to be so
deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current fiscal
year of the Issuer, as set forth in the certificates delivered pursuant
to clause (i) above and this clause (ii), is 10% or more of the
Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited if the fair value
thereof to the Issuer as set forth in the related Officer's Certificate
is less than $25,000 or less than 1% of the Outstanding Amount of the
Notes.
(iii) Other than with respect to the release of any Defaulted
Receivables and Receivables in Removed Accounts, whenever any property
or securities is to be released from the lien of this Master Indenture,
the Issuer shall also furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such release)
of the property or investment property proposed to be released and
stating that in the opinion of such person the proposed release will
not impair the security under this Master Indenture in contravention of
the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish to the Indenture Trustee (if
required by the TIA) an Independent Certificate as to the same matters
if the fair value of the property or securities and of all other
property, other than Defaulted Receivables and Receivables in Removed
Accounts, or securities released from the lien of this Master Indenture
since the commencement of the then current calendar year, as set forth
in the certificates required by clause (iii) above and this clause,
equals 10% or more of the Outstanding Amount of the Notes, but such
certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.11 or any other provision of
this Section, the Issuer may collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by
the Transaction Documents and make cash payments out of the Series
Accounts as and to the extent permitted or required by the Transaction
Documents.
Section 12.02. 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, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or
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opinion or representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, a Seller, a Transferor, the Issuer or the
Administrator, stating that the information with respect to such factual matters
is in the possession of the Servicer, a Seller, a Transferor, the Issuer or the
Administrator, unless such an Authorized Officer or Counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Master Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Master Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article Six.
Section 12.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Master Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by their
agents duly appointed in writing and satisfying any requisite percentages as to
minimum number or dollar value of outstanding principal amount represented by
such Noteholders; and, except as herein otherwise expressly provided, such
action shall 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 shall be sufficient
for any purpose of this Master Indenture and 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 in any manner which the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder (and any
transferee thereof) of every
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Note issued upon the registration thereof in exchange therefor or in lieu
thereof, in respect of anything done, omitted 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 12.04. Notices, Etc. to Indenture Trustee and Issuer. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Noteholders or other documents provided or permitted by this Master Indenture to
be made upon, given or furnished to, or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to a Responsible Officer, by facsimile
transmission or by other means acceptable to the Indenture Trustee to
or with the Indenture Trustee at its Corporate Trust Office; or
(b) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and
mailed, first-class postage prepaid, to the Issuer addressed to it at
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration, or at any other address previously furnished in writing
to the Indenture Trustee by the Issuer; a copy of each notice to the
Issuer shall be sent in writing and mailed, first-class postage
prepaid, to the Administrator at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 12.05. Notices to Noteholders; Waiver. Where the Master
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed by registered or certified mail or first class postage prepaid or
national overnight courier service to each Noteholder affected by such event, at
its address as it appears on the Note Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Noteholders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Noteholder shall affect the sufficiency of such notice with respect
to other Noteholders, and any notice which is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Master Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In the event that, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Master Indenture, then
any manner of giving such notice as shall be satisfactory to the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
80
Where this Master Indenture provides for notice to any Rating Agency,
failure to give such notice shall not affect any other rights or obligations
created hereunder and shall not under any circumstance constitute a Default or
Event of Default.
Section 12.06. Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Master 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, or notice by the
Indenture Trustee or any Paying Agent to such Holder, that is different from the
methods provided for in this Master 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 and notices to be given in
accordance with such agreements.
Section 12.07. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Master Indenture by any of the provisions of the
TIA, such required provision shall control.
The provisions of TIA Section 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Master Indenture) are a part of and govern this
Master Indenture, whether or not physically contained herein.
Section 12.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.09. Successors and Assigns. All covenants and agreements in
this Master Indenture by the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 12.10. Severability. In case any provision in this Master
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.11. Benefits of Indenture. Nothing in this Master Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Noteholders, the Servicer and
the Transferor, any benefit.
Section 12.12. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Master Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
Section 12.13. GOVERNING LAW. THE MASTER INDENTURE AND EACH NOTE SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE
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PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.14. Counterparts. This Master Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 12.15. Trust Obligations. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Master Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee or agent of the
Indenture Trustee or the Owner Trustee in its individual capacity, any holder of
a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee
or of any successor or assign of the Indenture Trustee or the Owner Trustee in
its individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Master Indenture, in the performance of any duties or obligations
hereunder, the Owner Trustee (as such or in its individual capacity) shall be
subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
Section 12.16. No Petition. The Indenture Trustee, by entering into
this Master Indenture, and each Noteholder, by accepting a Note, hereby covenant
and agree that they will not at any time institute against the Issuer or the
Transferor, or join in instituting against the Issuer or the Transferor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law.
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IN WITNESS WHEREOF, the undersigned have caused this Master Indenture
to be duly executed and delivered by their respective duly authorized officers
as of the day and year first above written.
NORDSTROM CREDIT CARD MASTER NOTE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-President
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice-President
Acknowledged and Accepted:
NORDSTROM CREDIT CARD RECEIVABLES LLC,
as Transferor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
NORDSTROM fsb,
as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President