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EXHIBIT 4.2
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WILMINGTON TRUST COMPANY AS OWNER TRUSTEE OF THE
HOUSEHOLD PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST I,
Issuer
and
U.S. BANK NATIONAL ASSOCIATION
Indenture Trustee, Paying Agent and Securities Intermediary
SERIES ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ SUPPLEMENT
Dated as of August 16, 2001
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TABLE OF CONTENTS
PAGE
ARTICLE I CREATION OF THE SERIES 2001-2 NOTES.....................................................................1
Section 1.01 Designation.......................................................................................1
ARTICLE II DEFINITIONS............................................................................................2
Section 2.01 Definitions.......................................................................................2
ARTICLE III SERVICING FEE........................................................................................14
Section 3.01 Servicing Compensation...........................................................................14
ARTICLE IV RIGHTS OF SERIES 2001-2 NOTEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS....................15
Section 4.01 Collections and Allocations......................................................................15
Section 4.02 Determination of Monthly Interest................................................................16
Section 4.03 Determination of Monthly Principal...............................................................17
Section 4.04 Application of Available Funds on Deposit in the Collection Account..............................18
Section 4.05 Investor Charge-offs.............................................................................21
Section 4.06 Subordinated Principal Collections...............................................................21
Section 4.07 Excess Finance Charge and Administrative Collections.............................................21
Section 4.08 Shared Principal Collections.....................................................................21
Section 4.09 [Reserved].......................................................................................22
Section 4.10 Principal Funding Account........................................................................22
Section 4.11 Reserve Account..................................................................................23
Section 4.12 Determination of LIBOR...........................................................................25
Section 4.13 Investment Instructions..........................................................................26
Section 4.14 Exchange of Notes for Transferor Amount..........................................................26
ARTICLE V DELIVERY OF SERIES 2001-2 NOTES; DISTRIBUTIONS; REPORTS TO SERIES 2001-2 NOTEHOLDERS...................27
Section 5.01 Delivery and Payment for the Series 2001-2 Notes.................................................27
Section 5.02 Distributions....................................................................................27
Section 5.03 Reports and Statements to Series 2001-2 Noteholders..............................................28
ARTICLE VI SERIES 2001-2 AMORTIZATION EVENTS.....................................................................28
Section 6.01 Series 2001-2 Amortization Events................................................................28
ARTICLE VII REDEMPTION OF SERIES 2001-2 NOTES; SERIES FINAL MATURITY; FINAL DISTRIBUTIONS.......................30
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Section 7.01 Optional Redemption of Series 2001-2 Notes.......................................................30
Section 7.02 Series Final Maturity............................................................................30
ARTICLE VIII MISCELLANEOUS PROVISIONS............................................................................31
Section 8.01 Ratification of Indenture........................................................................31
Section 8.02 Counterparts.....................................................................................31
Section 8.03 Governing Law....................................................................................32
Section 8.04 Transfer of the O/C Amount.......................................................................32
Section 8.05 Limitation of Liability..........................................................................32
Section 8.06 Perfection of Security Interest..................................................................32
Section 8.07 Transfer Restrictions............................................................................33
Section 8.08 Notice of Servicing Delegation...................................................................33
Section 8.09 Zero Balance Account Removal.....................................................................33
Section 8.10 Notice of Insolvency Events......................................................................33
EXHIBITS
EXHIBIT A-1 FORM OF CLASS A NOTE
EXHIBIT A-2 FORM OF CLASS B NOTE
EXHIBIT B FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION
TO THE INDENTURE TRUSTEE
EXHIBIT C FORM OF MONTHLY STATEMENT
EXHIBIT D FORM OF MONTHLY SERVICER'S CERTIFICATE
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SERIES ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ SUPPLEMENT, dated as of August 16,
2001 (the "
INDENTURE SUPPLEMENT"), among WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner Trustee of the HOUSEHOLD PRIVATE LABEL
CREDIT CARD MASTER NOTE TRUST I, a common law trust existing under the laws of
the State of Delaware (herein, the "ISSUER" or the "TRUST"), and U.S. BANK
NATIONAL ASSOCIATION, not in its individual capacity, but solely as the
Indenture Trustee (herein, together with its successors in the trusts created
under the Master Indenture referred to below, the "INDENTURE TRUSTEE"), Paying
Agent and the Securities Intermediary under the Master Indenture, dated as of
June 12, 2001 (the "INDENTURE") between the Issuer, and the Indenture Trustee
(the Indenture, together with this
Indenture Supplement, the "AGREEMENT").
The Transferor may direct the Owner Trustee, on behalf of the
Issuer, to issue one or more Series of Notes in accordance with Section 2.12 of
the Indenture. The Transferor has tendered the notice of issuance required by
subsection 2.12(b)(i) of the Indenture and hereby directs the Owner Trustee, on
behalf of the Issuer, to enter into this
Indenture Supplement with the
Indenture Trustee as required by Section 2.12 to provide for the issuance,
authentication and delivery of the Class A Notes, Series 2001-2 and the
issuance, authentication and delivery of the Class B Notes, Series 2001-2 and
to specify the Principal Terms thereof. The Principal Terms of this Series are
set forth in this
Indenture Supplement to the Indenture.
ARTICLE I
CREATION OF THE SERIES 2001-2 NOTES
Section 1.01 Designation
(a) There is hereby created a Series of Notes to be issued
pursuant to the Indenture and this
Indenture Supplement to be known as
"HOUSEHOLD PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST I, SERIES 2001-2" or the
"SERIES 2001-2 NOTES." The Series 2001-2 Notes shall be issued in two Classes,
the first of which shall be known as the "CLASS A SERIES 2001-2 FIXED RATE
ASSET BACKED NOTES" and the second of which shall be known as the "CLASS B
SERIES 2001-2 FLOATING RATE ASSET BACKED NOTES". The Series 2001-2 Notes shall
be due and payable on the Series 2001-2 Final Maturity Date.
(b) Series 2001-2 shall be a Pool One Series and shall be in
Principal Sharing Group One and Excess Finance Charge Sharing Group One, and
shall not be in a Reallocation Group, Shared Enhancement Group or be allocated
Shared Transferor Principal Collections. Series 2001-2 shall not be
subordinated to any other Series. Notwithstanding any provision in the
Indenture or in this
Indenture Supplement to the contrary, the first
Distribution Date with respect to Series 2001-2 shall be the September 17, 2001
Distribution Date, and the first Due Period shall begin on and include August
1, 2001 and end on and include August 31, 2001.
(c) In the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or provision contained in
the Indenture, the terms and provisions of this
Indenture Supplement shall be
controlling. All capitalized terms not otherwise defined herein are defined in
the Indenture, the Transfer and Servicing Agreement or the Trust
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Agreement. Each capitalized term defined herein shall relate only to the Series
2001-2 Notes but not any other Series of Notes issued by the Issuer.
ARTICLE II
DEFINITIONS
Section 2.01 Definitions
(a) Whenever used in this
Indenture Supplement, the following
words and phrases shall have the following meanings, and the definitions of
such terms are applicable to the singular as well as the plural forms of such
terms and the masculine as well as the feminine and neuter genders of such
terms.
"Accumulation Period Factor" shall mean, with respect to any
Due Period, a fraction, (a) the numerator of which is equal to the sum of (i)
the initial invested amounts of all Outstanding Series in Principal Sharing
Group One which are not Variable Funding Series, (ii) the Invested Amount of
all Outstanding Variable Funding Series in Principal Sharing Group One which
are in the Revolving Period and (iii) the Invested Amount as of the end of the
Revolving Period for all Outstanding Variable Funding Series in Principal
Sharing Group One which are not in the Revolving Period and (b) the denominator
of which is equal to the sum of (i) the Initial Invested Amount, (ii) the
initial invested amounts of all Outstanding Principal Sharing Group One Series
(other than Series 2001-2) that have controlled accumulation periods or
controlled amortization periods (the length of which may be altered in
accordance with the terms of the related
Indenture Supplements) and are not
expected to be in their respective revolving periods as of such Due Period and
(iii) the Invested Amount as of the end of the Revolving Period for all
Outstanding Variable Funding Series in Principal Sharing Group One which are
not expected to be in their revolving periods as of such Due Period; provided,
however, that this definition may be changed at anytime if an Officer's
Certificate is delivered indicating that such action will not result in an
Adverse Effect.
"Accumulation Period Length" shall have the meaning assigned
such term in subsection 4.04(e).
"Additional Interest" shall mean, with respect to any
Distribution Date, the Class A Additional Interest and the Class B Additional
Interest for such Distribution Date.
"Adjusted Invested Amount" shall mean, with respect to any
date of determination, an amount equal to the Invested Amount minus the
Principal Funding Account Balance on such date.
"Adjusted Pool One Principal Balance" shall mean an amount
equal to the greater of (a) the sum of (i) the total amount of Principal
Receivables in Pool One as of the close of business on the last day of the
immediately preceding Due Period (or with respect to the first Due Period, the
total amount of Principal Receivables in Pool One as of the Series 2001-2
Cut-off Date) and (ii) the principal amount on deposit in the Special Funding
Account with respect to
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Pool One as of the close of business on such last day (or with respect to the
first Due Period, the Series 2001-2 Cut-off Date) and (b) the sum of the
numerators used to calculate the investor percentages for allocations with
respect to Principal Receivables, Finance Charge and Administrative Receivables
or Defaulted Amounts, as applicable, for all Pool One Series outstanding as of
the date as to which such determination is being made; provided, however, that
with respect to any Due Period in which an Addition Date for an Aggregate
Addition or a Removal Date occurs, the amount in clause (a)(i) above shall be
the sum of the amounts for each day in such Due Period computed as follows and
divided by the number of days in such Due Period: (1) the aggregate amount of
Principal Receivables in Pool One as of the close of business on the last day
of the prior Due Period, for each day in the period from and including the
first day of such Due Period to but excluding the related Additional Cut-Off
Date or Removal Date and (2) the aggregate amount of Principal Receivables in
Pool One as of the close of business on the related Additional Cut-off Date or
Removal Date after adjusting for the aggregate amount of Principal Receivables
added to or removed from Pool One on the related Additional Cut-off Date or
Removal Date, as the case may be, for each day in the period from and including
the related Additional Cut-off Date or Removal Date to and including the last
day of such Due Period.
"Administration Fee" shall mean the fee payable to the
Administrator pursuant to the Administration Agreement, to the extent not paid
by the Transferor.
"Available Investor Finance Charge and Administrative
Collections" shall mean, with respect to any Due Period, an amount equal to the
sum of (a) the Investor Finance Charge and Administrative Collections, (b)
Principal Funding Investment Proceeds, if any, with respect to the related
Distribution Date, and (c) amounts, if any, to be withdrawn from the Reserve
Account which will be deposited into the Collection Account on the related
Distribution Date to be treated as Available Investor Finance Charge and
Administrative Collections pursuant to subsections 4.11(b) and (d).
"Available Investor Principal Collections" shall mean, with
respect to any Due Period, an amount equal to the sum of (a) (i) an amount
equal to the Investor Percentage of all Collections of Principal Receivables
received during such Due Period minus (ii) the amount of Subordinated Principal
Collections with respect to such Due Period, (b) any Shared Principal
Collections with respect to other Principal Sharing Group One Series (including
any amounts on deposit in the Special Funding Account with respect to Pool One
that are allocated to Series 2001-2 pursuant to the Agreement for application
as Shared Principal Collections), (c) any Refunding Proceeds and (d) any other
amounts which pursuant to Section 4.04 hereof are to be treated as Available
Investor Principal Collections with respect to the related Distribution Date.
"Available Reserve Account Amount" shall mean, with respect
to any Distribution Date, the lesser of (a) the amount on deposit in the
Reserve Account on such date (after taking into account any interest and
earnings retained in the Reserve Account pursuant to subsection 4.11(b) on such
date, but before giving effect to any (i) deposit made or to be made pursuant
to subsection 4.04(a)(ix) to the Reserve Account on such date, or (ii) any
withdrawal made or to be made pursuant to subsection 4.11(d), (e) and (f) from
the Reserve Account with respect to such date) and (b) the Required Reserve
Account Amount.
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"Base Rate" shall mean, with respect to any Due Period, the
sum of (a) the product of the weighted average of the Class A Note Interest
Rate and the Class B Note Interest Rate for the Interest Period commencing in
such Due Period (weighted based on the Class A Note Principal Balance and the
Class B Note Principal Balance as of the last day of the prior Due Period)
multiplied by a fraction, the numerator of which is the Note Principal Balance
and the denominator of which is the sum of the Note Principal Balance and the
O/C Amount as of the last day of the prior Due Period and (b) a fraction, the
numerator of which is the product of (i) twelve and (ii) the Monthly Servicing
Fee and the denominator of which is the sum of the Note Principal Balance and
the O/C Amount as of the last day of the prior Due Period.
"Class A Additional Interest" shall have the meaning
specified in subsection 4.02(a).
"Class A Interest Shortfall" shall have the meaning specified
in subsection 4.02(a).
"Class A Monthly Interest" shall have the meaning specified
in subsection 4.02(a).
"Class A Note Initial Principal Balance" shall mean
$550,000,000.
"Class A Note Interest Rate" shall mean a per annum rate of
4.95%.
"Class A Note Principal Balance" shall mean, with respect to
any date, an amount equal to (a) the Class A Note Initial Principal Balance
minus (b) the aggregate amount of any principal payments made to the Class A
Noteholders prior to such date.
"Class A Noteholder" shall mean the Person in whose name a
Class A Note is registered in the Note Register.
"Class A Notes" shall mean any one of the Notes executed by
the Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of EXHIBIT A-1.
"Class B Additional Interest" shall have the meaning
specified in subsection 4.02(b).
"Class B Interest Shortfall" shall have the meaning specified
in subsection 4.02(b).
"Class B Monthly Interest" shall have the meaning specified
in subsection 4.02(b).
"Class B Note Initial Principal Balance" shall mean
$74,050,000.
"Class B Note Interest Rate" shall mean a per annum rate of
0.45% in excess of LIBOR as determined (i) on August 14, 2001, for the period
from and including the Closing Date through and excluding September 17, 2001
and (ii) on the related LIBOR Determination Date with respect to each Interest
Period thereafter.
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"Class B Note Principal Balance" shall mean, with respect to
any date, the Class B Note Initial Principal Balance, minus the aggregate
amount of any principal payments made to the Class B Noteholders prior to such
date.
"Class B Noteholder" shall mean the Person in whose name a
Class B Note is registered in the Note Register.
"Class B Notes" shall mean any one of the Notes executed by
the Issuer and authenticated by or on behalf of the Indenture Trustee,
substantially in the form of EXHIBIT A-2.
"Closing Date" shall mean August 16, 2001.
"Controlled Accumulation Amount" shall mean for any
Distribution Date with respect to the Controlled Accumulation Period,
$52,004,167; provided, however, that if the Accumulation Period Length is
determined to be less than 12 Due Periods pursuant to subsection 4.04(e), the
Controlled Accumulation Amount for each Distribution Date with respect to the
Controlled Accumulation Period will be equal to (a) the product of (i) the sum
of the Class A Note Initial Principal Balance and the Class B Note Initial
Principal Balance and (ii) the Accumulation Period Factor for the Due Period
related to each Distribution Date divided by (b) the Required Accumulation
Factor Number.
"Controlled Accumulation Period" shall mean, unless an
Amortization Event shall have occurred prior thereto, the period commencing at
the close of business on July 31, 2003 or such later date as is determined in
accordance with subsection 4.04(e) and ending on the first to occur of (a) the
commencement of the Early Amortization Period, (b) the payment in full of the
Note Principal Balance and (c) the Expected Principal Payment Date.
"Controlled Deposit Amount" shall mean, with respect to any
Distribution Date with respect to the Controlled Accumulation Period, an amount
equal to the sum of (a) the Controlled Accumulation Amount for such
Distribution Date and (b) any Deficit Controlled Accumulation Amount for the
prior Distribution Date.
"Covered Amount" shall mean an amount, determined as of each
Distribution Date with respect to any Interest Period during the Controlled
Accumulation Period, equal to the sum of (a) the product of (i) one-twelfth,
times (ii) the Class A Note Interest Rate, times (iii) the aggregate amount on
deposit in the Principal Funding Account up to the Class A Note Principal
Balance as of the Record Date preceding such Distribution Date and (b) the
product of (i) a fraction, the numerator of which is the actual number of days
in such Interest Period and the denominator of which is 360, times (ii) the
Class B Note Interest Rate in effect with respect to such Interest Period,
times (iii) the lesser of (A) the aggregate amount on deposit in the Principal
Funding Account in excess of the Class A Note Principal Balance and (B) the
Class B Note Principal Balance, in each case as of the Record Date preceding
such Distribution Date.
"Deficit Controlled Accumulation Amount" shall mean (a) on
the first Distribution Date during the Controlled Accumulation Period, the
excess, if any, of the Controlled Accumulation Amount for such Distribution
Date over the amount deposited in the Principal Funding Account on such
Distribution Date and (b) on each subsequent Distribution Date with respect to
the Controlled Accumulation Period, the excess, if any, of the Controlled
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Deposit Amount for such subsequent Distribution Date over the amount deposited
into the Principal Funding Account on such subsequent Distribution Date.
"Distribution Date" shall mean September 17, 2001 and the
fifteenth day of each calendar month thereafter, or if such fifteenth day is
not a Business Day, the next succeeding Business Day.
"Early Amortization Period" shall mean the period commencing
on the first day of the Due Period on which an Amortization Event with respect
to Series 2001-2 is deemed to have occurred or, if the Servicer is required to
make daily deposits into the Collection Account, on the day such Amortization
Event is deemed to have occurred, and ending upon the earlier to occur of (a)
the payment in full of the Note Principal Balance to the Series 2001-2
Noteholders and (b) the Series 2001-2 Final Maturity Date.
"Eligible Investments" shall mean, with respect to funds
allocable to Series 2001-2 in the Collection Account, the Principal Funding
Account and the Reserve Account, "Eligible Investments" as defined in the
Indenture, except that (a) all references in such definition to "rating
satisfactory to the Rating Agency" shall mean ratings of not less than "A-1+",
"P-1" and "F1+" (whichever is applicable), unless otherwise specified by the
Rating Agency, and (b) all such investments shall have maturities at the time
of the acquisition thereof occurring no later than the Distribution Date
following such date of acquisition.
"Excess Finance Charge and Administrative Collections" shall
have the meaning specified in Section 8.08C of the Master Indenture.
"Excess Finance Charge Sharing Group One" shall mean Series
2001-2 and each other Series specified in the related
Indenture Supplement to
be included in Excess Finance Charge Sharing Group One.
"Excess O/C Amount" shall mean, with respect to any
Distribution Date, the excess of the O/C Amount (before giving effect to
distributions on such Distribution Date) over the Required O/C Amount as of
such Distribution Date.
"Excess Spread" shall mean with respect to any Due Period,
the annualized percentage equivalent of a fraction, (a) the numerator of which
is equal to (i) Available Investor Finance Charge and Administrative
Collections with respect to such Due Period, plus (ii) any Excess Finance
Charge and Administrative Collections that are allocated to Series 2001-2 with
respect to such Due Period, minus (iii) the amounts distributable pursuant to
subsection 4.04(a)(i) through (viii) with respect to the related Distribution
Date, and (b) the denominator of which is the sum of the Note Principal Balance
and the O/C Amount as of the last day of the immediately preceding Due Period.
"Expected Principal Payment Date" shall mean the August 16,
2004 Distribution Date.
"Finance Charge Shortfall" shall have the meaning specified
in Section 4.07.
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"Fixed Investor Percentage" shall mean, with respect to any
Due Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, (a) the numerator of which is the Adjusted Invested Amount
as of the close of business on the last day of the Revolving Period and (b) the
denominator of which is the Adjusted Pool One Principal Balance.
"Floating Investor Percentage" shall mean, with respect to
any Due Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, (a) the numerator of which is the Adjusted Invested Amount
as of the close of business on the last day of the preceding Due Period (or
with respect to the first Due Period, the Initial Invested Amount) and (b) the
denominator of which is the Adjusted Pool One Principal Balance.
"Initial O/C Amount" shall mean $81,100,000.
"Initial Invested Amount" shall mean $705,150,000.
"Initial Principal Amount" shall mean $624,050,000.
"Interest Period" shall mean, with respect to any
Distribution Date, the period from and including the Distribution Date
immediately preceding such Distribution Date (or, in the case of the first
Distribution Date, from the Closing Date) to but excluding such Distribution
Date.
"Interim Note Principal Amount" shall mean as of any
Distribution Date (before giving effect to distributions on such Distribution
Date) (a) the Class A Note Principal Balance plus (b) the Class B Note
Principal Balance minus (c) the Principal Funding Account Balance, if any, as
of such Distribution Date, minus (d) the Controlled Deposit Amount for such
Distribution Date.
"Invested Amount" shall mean, as of any date of
determination, an amount equal to the Initial Principal Amount and the Initial
O/C Amount minus (a) the amount of principal previously paid to the Series
2001-2 Noteholders with respect to the Class A Notes and the Class B Notes
(including the principal amount of any Notes purchased by the Transferor) and
any reduction in the O/C Amount pursuant to Section 4.04(b) or (c), and (b) the
amount of unreimbursed Investor Charge-offs and unreimbursed Subordinated
Principal Collections.
"Investor Charge-off" shall have the meaning specified in
Section 4.05.
"Investor Defaulted Amount" shall mean, with respect to any
Distribution Date, an amount equal to the product of (a) the Defaulted Amount
for the related Due Period and (b) the Investor Percentage for such Due Period.
"Investor Finance Charge and Administrative Collections"
shall mean, with respect to any Distribution Date, an amount equal to the
product of (a) Investor Percentage for the related Due Period and (b)
Collections of Finance Charge and Administrative Receivables deposited in the
Collection Account for the related Due Period.
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"Investor Percentage" shall mean, for any Due Period, (a)
with respect to (i) Finance Charge and Administrative Receivables during any
period other than the Early Amortization Period, (ii) Principal Receivables
during the Revolving Period and (iii) Defaulted Amounts at any time, the
Floating Investor Percentage and (b) with respect to (i) Principal Receivables
during any period other than the Revolving Period and (ii) Finance Charge and
Administrative Receivables during the Early Amortization Period, the Fixed
Investor Percentage.
"LIBOR" shall mean, for any LIBOR Determination Date, the
London interbank offered rate for one-month United States dollar deposits
determined by the Indenture Trustee for each Interest Period in accordance with
the provisions of Section 4.12.
"LIBOR Determination Date" shall mean for any Interest
Period, two London Business Days before that Interest Period commences;
provided that the LIBOR Determination Date for the first Interest Period will
be two London Business Days before the Closing Date.
"London Business Day" shall mean any Business Day on which
dealings in deposits in United States dollars are transacted in the London
interbank market.
"Monthly Administration Fee" shall mean the product of (i)
one-twelfth of the Administration Fee and (ii) the Floating Investor
Percentage.
"Monthly Interest" shall mean, with respect to any
Distribution Date, the sum of the Class A Monthly Interest and the Class B
Monthly Interest for such Distribution Date.
"Monthly Principal" shall mean the monthly principal
distributable in respect of the Notes and the O/C Amount as calculated in
accordance with Section 4.03.
"Monthly Servicing Fee" shall mean, for any Distribution
Date, an amount equal to one-twelfth of the product of:
(a) the Servicing Fee Rate;
(b) the Floating Investor Percentage for the related Due
Period; and
(c) the total amount of Principal Receivables as of the close
of business on the last day of the immediately preceding Due Period, or with
respect to the first Due Period, the total amount of Principal Receivables as
of the Closing Date, in either case, excluding the principal portion of
Participation Interests;
provided, however, that with respect to any Due Period in which an Addition
Date for an Aggregate Addition or a Removal Date occurs, the amount in clause
(c) above shall be the sum of the amounts for each day in that Due Period
computed as follows and divided by the number of days in that Due Period:
(i) the aggregate amount of Principal Receivables,
excluding the principal portion of participation
interests, as of the close of business on the last
day of the prior Due Period, for each day in the
period from and including the
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first day of that Due Period to but excluding the
related Additional Cut-off Date or Removal Date; and
(ii) the aggregate amount of Principal Receivables,
excluding the principal portion of participation
interests, as of the close of business on the
related Additional Cut-off Date or Removal Date
after adjusting for the aggregate amount of
Principal Receivables, excluding the principal
portion of Participation Interests, added to or
removed on the related Additional Cut-off Date or
Removal Date, as the case may be, for each day in
the period from and including the related Additional
Cut-off Date or Removal Date to and including the
last day of that Due Period;
provided further, that with respect to the first Distribution Date, the Monthly
Servicing Fee will equal $1,175,250.
"Monthly Subordination Amount" shall mean with respect to any
Due Period an amount equal to the sum of:
(a) the lower of (i) the excess of the amounts distributable
pursuant to subsection 4.04(a)(i) over the Available Investor Finance Charge
and Administrative Collections and Excess Finance Charge and Administrative
Collections allocated with respect thereto pursuant to subsection 4.04(a)(i),
and (ii) (1) the product of (I) 22.0% and (II) the Initial Invested Amount
minus (2) any principal payments to the O/C Holder and (3) the amount of
unreimbursed Investor Charge-offs (after giving effect to Investor Charge-offs
for the related Due Period) and unreimbursed Subordinated Principal Collections
(as of the previous Distribution Date); and
(b) the lower of (i) the excess of the amounts distributable
pursuant to subsections 4.04(a)(ii) and 4.04(a)(iii), over the Available
Investor Finance Charge and Administrative Collections and Excess Finance
Charge and Administrative Collections allocated with respect thereto pursuant
to subsections 4.04(a)(ii) and (iii), and (ii)(1) the product of (I) 11.5% and
(II) the Initial Invested Amount minus (2) any principal payments to the O/C
Holder and (3) the amount of unreimbursed Investor Charge-offs (after giving
effect to Investor Charge-offs for the related Due Period) and unreimbursed
Subordinated Principal Collections, (including amounts allocated pursuant to
clause (a) above with respect to the related Distribution Date).
"Note Principal Balance" shall mean, at any time of
determination, the sum of the Class A Note Principal Balance and the Class B
Note Principal Balance.
"O/C Amount" shall mean, with respect to any date, an amount
equal to (a) the Invested Amount minus (b) the Note Principal Balance.
"O/C Holder" shall mean HRSI Funding, Inc. II, a Delaware
corporation, as holder of the Transferor Certificate.
Plan "shall mean employee benefit plans and certain other
retirement plans and arrangements (including, without limitation, individual
retirement accounts and annuities), as
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well as collective investment funds and certain separate and general accounts
in which such plans or arrangements are invested.
"Pool One" shall mean the pool of Receivables related to the
Accounts designated as "Pool One Accounts" by the Issuer to the Indenture
Trustee. Initially, the Issuer has designated all Accounts as "Pool One
Accounts".
"Pool One Series" shall mean Series 2001-2 and each other
Series which is designated as a Pool One Series in the related Indenture
Supplement.
"Principal Funding Account" shall have the meaning set forth
in subsection 4.10(a).
"Principal Funding Account Balance" shall mean, with respect
to any date of determination, the principal amount, if any, on deposit in the
Principal Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall mean, with
respect to each Distribution Date, the investment earnings on funds in the
Principal Funding Account (net of investment expenses and losses) for the period
from and including the immediately preceding Distribution Date to but excluding
such Distribution Date.
"Principal Sharing Group One" shall mean Series 2001-2 and
each other Series specified in the related Indenture Supplement to be included
in Principal Sharing Group One.
"Rating Agency" shall mean each of Standard & Poor's, ▇▇▇▇▇'▇
and Fitch.
"Reassignment Amount" shall mean, with respect to any
Distribution Date, after giving effect to any deposits and distributions
otherwise to be made on such Distribution Date, the sum of (a) the Note
Principal Balance and the O/C Amount on such Distribution Date, plus (b)
Monthly Interest for such Distribution Date and any Monthly Interest previously
due but not distributed to the Series 2001-2 Noteholders, plus (c) the amount
of Additional Interest, if any, for such Distribution Date and any Additional
Interest previously due but not distributed to the Series 2001-2 Noteholders on
a prior Distribution Date.
"Reference Banks" shall mean four major banks in the London
interbank market selected by the Servicer.
"Refunding Proceeds" shall mean with respect to any
Distribution Date, any proceeds of the issuance of a new Series of Notes
remitted by the Transferor, with the prior written consent of the Indenture
Trustee at least one Business Day prior to such Distribution Date for deposit
into the Collection Account and application as Available Investor Principal
Collections.
"Required Accumulation Factor Number" shall be equal to a
fraction, rounded upwards to the nearest whole number, the numerator of which
is one and the denominator of which is equal to the lowest monthly principal
payment rate (calculated based upon Collections of Principal Receivables for
any Due Period, over the amount of Principal Receivables on the
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first day of such Due Period) on the Accounts for the 12 months preceding the
date of such calculation; provided, however, that this definition may be
changed at any time if the Rating Agency Condition is satisfied.
"Required O/C Amount" shall mean, as of the Closing Date, the
Initial O/C Amount and, as of any Distribution Date thereafter, an amount equal
to the lesser of 13% of the Initial Principal Amount or 15.61% of the Interim
Note Principal Amount for such Distribution Date but not less than 3% of the
Initial Invested Amount; provided that (a) if an Amortization Event has
occurred, the Required O/C Amount for any Distribution Date shall equal the
amount of such requirement immediately preceding such Amortization Event, (b)
in no event shall the Required O/C Amount exceed the Class A Note Principal
Balance and the Class B Note Principal Balance on any such date, (c) the
Required O/C Amount may be reduced at any time to a lesser amount if (i) the
Rating Agency Condition is satisfied and (ii) an Officer's Certificate of the
Transferor has been delivered to the effect that in the reasonable belief of
the Transferor, such reduction will not result in an Adverse Effect and (d) the
Transferor, in its sole discretion may increase the Required O/C Amount at any
time.
"Required Reserve Account Amount" shall mean, with respect to
any Distribution Date on or after the Reserve Account Funding Date, an amount
equal to (a) 0.50% of the Class A Note Principal Balance or (b) any other
amount designated by the Transferor; provided, however, that if such
designation is of a lesser amount, the Transferor shall (i) provide the
Servicer and the Indenture Trustee with evidence that the Rating Agency
Condition shall have been satisfied and (ii) deliver to the Indenture Trustee
an Officer's Certificate indicating that such designation will not result in an
Adverse Effect.
"Required Transferor Amount" shall have the meaning specified
in the Indenture.
"Required Transferor Percentage" shall mean with respect to
Pool One, (a) initially 7% or (b) any other percentage designated by the
Transferor; provided, however, that if such designation is of a lesser amount,
the Transferor shall (i) provide the Servicer and the Indenture Trustee with
evidence that the Rating Agency Condition shall have been satisfied and (ii)
deliver to the Indenture Trustee a certificate of an authorized officer to the
effect that, based on the facts known to such officer at such time, in the
reasonable belief of the Transferor, such designation will not have an Adverse
Effect.
"Reserve Account" shall have the meaning specified in
subsection 4.11(a).
"Reserve Account Funding Date" shall mean (a) the third
Distribution Date prior to the scheduled commencement of the Controlled
Accumulation Period if the average Excess Spread for any three consecutive
months is 4% or greater, (b) the fourth Distribution Date prior to the
scheduled commencement of the Controlled Accumulation Period if the average
Excess Spread for any three consecutive months is 3% or greater, but less than
4% (c) the sixth Distribution Date prior to the scheduled commencement of the
Controlled Accumulation Period if the average Excess Spread for any three
consecutive months is 3% or greater, but less than 2% and (d) the twelfth
Distribution Date prior to the scheduled commencement of the Controlled
Accumulation Period if the average Excess Spread for any three consecutive
months is less than 2%. For purposes of this definition, Excess Spread shall be
determined for each month
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beginning 13 months prior to the scheduled commencement of the Controlled
Accumulation Period.
"Reserve Account Surplus" shall mean, as of any Distribution
Date following the Reserve Account Funding Date, the amount, if any, by which
the amount on deposit in the Reserve Account exceeds the Required Reserve
Account Amount.
"Reserve Draw Amount" shall mean, with respect to each
Distribution Date relating to the Controlled Accumulation Period or the first
Distribution Date relating to the Early Amortization Period, the amount, if
any, by which the Principal Funding Investment Proceeds for such Distribution
Date are less than the Covered Amount determined as of such Distribution Date.
"Revolving Period" shall mean the period beginning on the
Closing Date and ending on the earlier of the close of business on the day
immediately preceding the day the Controlled Accumulation Period or the Early
Amortization Period commences.
"Series 2001-2" shall mean the Series of Notes for which the
terms are specified in this Indenture Supplement.
"Series 2001-2 Accounts" shall mean the Reserve Account and
the Principal Funding Account.
"Series 2001-2 Amortization Event" shall have the meaning
specified in Section 6.01.
"Series 2001-2 Cut-off Date" shall mean the commencement of
business on August 1, 2001.
"Series 2001-2 Final Maturity Date" shall mean the earliest
to occur of (a) the June, 2008 Distribution Date, (b) the Distribution Date on
which the Notes are paid in full, (c) the termination of the Trust pursuant to
Section 11.01 of the Indenture and (d) at the option of the Transferor, the day
on which the right of all Series of Notes to receive payments from the Trust
has terminated.
"Series 2001-2 Note" shall mean a Class A Note or a Class B
Note.
"Series 2001-2 Noteholder" shall mean a Class A Noteholder or
a Class B Noteholder.
"Series 2001-2 Principal Shortfall" shall have the meaning
specified in Section 4.08.
"Series Adjusted Invested Amount" shall mean, with respect to
any Due Period:
(a) during the Revolving Period, the Invested Amount as of
the last day of the immediately preceding Due Period;
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(b) during the Controlled Accumulation Period, the amount
specified in clause (a) above as of the close of business on the last day of
the Revolving Period less unreimbursed Investor Charge-offs thereafter;
provided, however, that on any date, at the option of the Transferor (the
exercise of such option to be evidenced by written instructions from the
Transferor to the Servicer and the Indenture Trustee) and upon ten days written
notice to the Rating Agency, such amount may be reduced below the amount
specified for the previous Due Period to an amount not less than the greater of
(i) the Adjusted Invested Amount as of the last day of the immediately
preceding Due Period (less any amounts deposited into the Principal Funding
Account since the last day of the immediately preceding Due Period) and (ii) an
amount that, if used as the numerator of the Fixed Investor Percentage for the
remainder of the Controlled Accumulation Period, would assure that Available
Investor Principal Collections for this Series plus the product of the
aggregate amount of the Shared Principal Collections during each Due Period
multiplied by a fraction the numerator of which is the Invested Amount of this
Series and the denominator of which is the aggregate invested amount of all
Series not scheduled to be in their revolving period during such Due Period
would equal at least 125% of the applicable Controlled Accumulation Amount for
such Due Period for so long as the Invested Amount is greater than zero,
assuming for this purpose that (A) the payment rate with respect to Collections
of Principal Receivables remains constant at the level of the immediately
preceding Due Period, (B) the total amount of Principal Receivables theretofore
conveyed to and in the Trust (and the Special Funding Amount) remains constant
at the level existing on the date of such reduction, (C) no amortization event
with respect to any Series will subsequently occur and (D) no additional Series
(other than any Series being issued on the date of such reduction) will be
subsequently issued; and
(c) during any Early Amortization Period, the Invested Amount
as of the last day of the Revolving Period less unreimbursed Investor
Charge-offs thereafter or, if less, the amount last determined pursuant to
clause (b) above during the Controlled Accumulation Period.
"Series Portfolio Yield" shall mean, with respect to any Due
Period, the annualized percentage equivalent of a fraction, (a) the numerator
of which is equal to the sum of (i) Available Investor Finance Charge and
Administrative Collections with respect to such Due Period, plus (ii) any
Excess Finance Charge and Administrative Collections that are allocated to
Series 2001-2 with respect to such Due Period, such sum to be calculated after
subtracting the Investor Defaulted Amount for such Due Period, and (b) the
denominator of which is the sum of the Note Principal Balance and the O/C
Amount as of the last day of the immediately preceding Due Period.
"Servicing Fee Rate" shall mean 2% per annum or such lesser
percentage as may be specified by the Servicer in an Officer's Certificate
filed with the Indenture Trustee; provided, however, that (a) such Officer's
Certificate shall state that, in the reasonable belief of the Servicer, such
change in percentage will not result in an Adverse Effect and (b) the Servicer
shall have provided written notice of such change to the Rating Agency at least
ten days prior to the date such change is to take effect.
"Subordinated Principal Collections" shall mean with respect
to any Due Period, Available Investor Principal Collections applied in
accordance with Section 4.06 in an amount
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not to exceed the lesser of the Monthly Subordination Amount for the related
Due Period and the Invested Amount after giving effect to any Investor
Charge-offs for the related Distribution Date.
"Telerate Page 3750" shall mean the display page currently so
designated on the Bridge Telerate Capital Markets Report (or such other page as
may replace that page in that service for the purpose of displaying comparable
rates or prices).
"Variable Funding Series" shall mean any Series, the invested
amount of which may be increased or decreased subject to the satisfaction of
certain conditions specified in the Indenture Supplement related to such
Series.
Each capitalized term defined herein shall relate to the
Series 2001-2 Notes and no other Series of Notes issued by the Trust, unless
the context otherwise requires. All capitalized terms used herein and not
otherwise defined herein have the meanings ascribed to them in the Indenture or
the Transfer and Servicing Agreement. In the event that any term or provision
contained herein shall conflict with or be inconsistent with any term or
provision contained in the Indenture or Transfer and Servicing Agreement, the
terms and provisions of this Indenture Supplement shall govern.
The words "HEREOF," "HEREIN" and "HEREUNDER" and words of
similar import when used in this Indenture Supplement shall refer to this
Indenture Supplement as a whole and not to any particular provision of this
Indenture Supplement; references to any Article, subsection, Section or Exhibit
are references to Articles, subsections, Sections and Exhibits in or to this
Indenture Supplement unless otherwise specified; and the term "INCLUDING" means
"INCLUDING WITHOUT LIMITATION."
ARTICLE III
SERVICING FEE
Section 3.01 Servicing Compensation.
(a) Servicing Fee. The share of the Servicing Fee allocable
to the Series 2001-2 Noteholders with respect to any Distribution Date shall
equal the Monthly Servicing Fee. The portion of the Servicing Fee that is not
allocable to the Series 2001-2 Noteholders shall be paid by the holders of the
Transferor Certificates or the noteholders of other Series (as provided in the
related Indenture Supplements), and in no event shall the Trust, the Owner
Trustee, the Indenture Trustee or the Series 2001-2 Noteholders be liable for
the share of the Servicing Fee to be paid by the holders of the Transferor
Certificates or the noteholders of any other Series.
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ARTICLE IV
RIGHTS OF SERIES 2001-2 NOTEHOLDERS
AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.01 Collections and Allocations.
(a) Allocations. Collections of Finance Charge and
Administrative Receivables and Principal Receivables and Defaulted Receivables
allocated to Series 2001-2 pursuant to Article VIII of the Indenture shall be
allocated and distributed as set forth in this Article.
(b) Payments to the Transferor. The Servicer shall on Deposit
Dates direct the Indenture Trustee to withdraw from the Collection Account and
pay to the Transferor the following amounts:
(i) an amount equal to the Transferor Percentage for
the related Due Period of Collections of Finance Charge and
Administrative Receivables to the extent that such amount is then on
deposit in the Collection Account; and
(ii) (A) (A) if the Transferor Amount (determined
after giving effect to any Principal Receivables transferred
to the Trust on such Deposit Date) exceeds zero, an amount
equal to the Transferor Percentage for the related Due Period
of Collections of Principal Receivables that are then on
deposit in the Collection Account, and
(B) if the Transferor Amount (determined after
giving effect to any Principal Receivables transferred to the
Trust on such Deposit Date) does not exceed zero, the amount
set forth in clause (A) shall be deposited into the Special
Funding Account.
The withdrawals to be made from the Collection Account
pursuant to this subsection 4.01(b) do not apply to deposits into the
Collection Account that do not represent Collections, including payment of the
purchase price for the Receivables or the Notes pursuant to Section 2.06 or
7.01 of the Transfer and Servicing Agreement or Section 11.04 of the Indenture.
(c) Allocations to the Series 2001-2 Noteholders and to the
O/C Holder. The Servicer shall, prior to the close of business on any Deposit
Date, allocate to the Series 2001-2 Noteholders and to the O/C Holder the
following amounts as set forth below:
(i) Allocations of Investor Finance Charge and
Administrative Collections. The Servicer shall allocate to the Series
2001-2 Noteholders and to the O/C Holder and retain in the Collection
Account for application as provided herein an amount equal to the
product of (A) the Investor Percentage and (B) the aggregate amount of
Collections of Finance Charge and Administrative Receivables deposited
in the Collection Account on such Deposit Date.
(ii) Allocations of Principal Collections. The
Servicer shall allocate to the Series 2001-2 Noteholders and to the
O/C Holder the following amounts as set forth below:
(A) Allocations During the Revolving Period. During
the Revolving Period an amount equal to the product of (I)
the Investor Percentage and (II) the
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aggregate amount of Collections of Principal Receivables
deposited in the Collection Account on such Deposit Date,
shall be allocated to the Series 2001-2 Noteholders and
retained in the Collection Account until applied as provided
herein.
(B) Allocations During the Controlled Accumulation
Period. During the Controlled Accumulation Period an amount
equal to the product of (I) the Investor Percentage and (II)
the aggregate amount of Collections of Principal Receivables
deposited in the Collection Account on such Deposit Date
shall be allocated to the Series 2001-2 Noteholders and
deposited in the Principal Funding Account until applied as
provided herein; provided, however, that if such Collections
with respect to such Due Period exceeds the Controlled
Deposit Amount for the related Distribution Date then such
excess shall be first, retained in the Collection Account for
application to reduce the O/C Amount to the Required O/C
Amount, second, if any other Principal Sharing Series in
Principal Sharing Group One is outstanding and in its
amortization period or accumulation period, retained in the
Collection Account for application, to the extent necessary,
as Shared Principal Collections to other Series in Principal
Sharing Group One on the related Distribution Date, and third
paid to the holders of the Transferor Certificates only if
the Transferor Amount on such Deposit Date is greater than
the Required Transferor Amount (after giving effect to all
Principal Receivables transferred to the Trust on such day)
and otherwise shall be deposited in the Special Funding
Account for Pool One.
(C) Allocations During the Early Amortization
Period. During the Early Amortization Period, an amount equal
to the product of (I) the Investor Percentage and (II) the
aggregate amount of Collections of Principal Receivables
deposited in the Collection Account on such Deposit Date,
shall be allocated to the Series 2001-2 Noteholders and
retained in the Collection Account until applied as provided
herein; provided, however, that after the date on which an
amount of such Collections equal to the Note Principal
Balance has been deposited into the Collection Account and
allocated to the Series 2001-2 Noteholders, the excess over
such amount shall be first, retained in the Collection
Account for application to reduce the O/C Amount to the
Required O/C Amount, second, if any other Principal Sharing
Series in Principal Sharing Group One is outstanding and in
its amortization period or accumulation period, retained in
the Collection Account for application, to the extent
necessary, as Shared Principal Collections on the related
Distribution Date, and third paid to the holders of the
Transferor Certificates only if the Transferor Amount on such
date is greater than the Required Transferor Amount (after
giving effect to all Principal Receivables transferred to the
Trust on such day) and otherwise shall be deposited in the
Special Funding Account for Pool One.
Section 4.02 Determination of Monthly Interest.
(a) The amount of monthly interest ("CLASS A MONTHLY
INTEREST") distributable from the Collection Account with respect to the Class
A Notes (i) on the initial
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Distribution Date shall be an amount equal to the product of (A) twenty nine -
three hundreds sixtieths (29/360), (B) the Class A Note Interest Rate, and (C)
the Class A Note Principal Balance as of the close of business on the Closing
Date; and (ii) on any subsequent Distribution Date shall be an amount equal to
the product of (A) one-twelfth, (B) the Class A Note Interest Rate and (C) the
Class A Note Principal Balance as of the close of business on the last day of
the preceding Due Period.
On each Determination Date, the Servicer shall determine the
excess, if any (the "CLASS A INTEREST SHORTFALL"), of (x) the Class A Monthly
Interest for such Distribution Date over (y) the aggregate amount of funds
expected to be paid with respect to such Class A Monthly Interest on the
related Distribution Date. If the Class A Interest Shortfall with respect to
any Distribution Date is greater than zero, on each subsequent Distribution
Date until such Class A Interest Shortfall is fully paid, an additional amount
("CLASS A ADDITIONAL INTEREST") equal to the product of (i) (A) one-twelfth,
times (B) the Class A Note Interest Rate and (ii) such Class A Interest
Shortfall (or the portion thereof which has not been paid to the Class A
Noteholders) shall be payable as provided herein with respect to the Class A
Notes. Notwithstanding anything to the contrary herein, Class A Additional
Interest shall be payable or distributed to the Class A Noteholders only to the
extent permitted by applicable law.
(b) The amount of monthly interest ("CLASS B MONTHLY
INTEREST") distributable from the Collection Account with respect to the Class
B Notes on any Distribution Date shall be an amount equal to the product of (i)
(A) a fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, times (B) the
Class B Note Interest Rate in effect with respect to the related Interest
Period and (ii) the Class B Note Principal Balance as of the close of business
on the last day of the preceding Due Period.
On each Determination Date, the Servicer shall determine the
excess, if any (the "CLASS B INTEREST SHORTFALL"), of (x) the Class B Monthly
Interest for such Distribution Date over (y) the aggregate amount of funds
expected to be paid with respect to such Class B Monthly Interest on the
related Distribution Date. If the Class B Interest Shortfall with respect to
any Distribution Date is greater than zero, on each subsequent Distribution
Date until such Class B Interest Shortfall is fully paid, an additional amount
("CLASS B ADDITIONAL INTEREST") equal to the product of (i) (A) a fraction, the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, times (B) the Class B Note Interest Rate
and (ii) such Class B Interest Shortfall (or the portion thereof which has not
been paid to the Class B Noteholders) shall be payable as provided herein with
respect to the Class B Notes. Notwithstanding anything to the contrary herein,
Class B Additional Interest shall be payable or distributed to the Class B
Noteholders only to the extent permitted by applicable law.
Section 4.03 Determination of Monthly Principal.
The amount of monthly principal distributable from the
Collection Account with respect to the Notes and the O/C Amount on each
Distribution Date (the "MONTHLY PRINCIPAL"), beginning with the Distribution
Date in the month following the month in which the Controlled Accumulation
Period or, if earlier, the Early Amortization Period, begins, shall be equal to
the least of (a) the Available Investor Principal Collections on deposit in the
Collection Account
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with respect to such Distribution Date, (b) for each Distribution Date with
respect to the Controlled Accumulation Period, the sum of the Controlled
Deposit Amount for such Distribution Date and the Excess O/C Amount for the
related Due Period and (c) the Adjusted Invested Amount for such Distribution
Date (after taking into account any adjustments to be made on such Distribution
Date pursuant to Sections 4.05 and 4.06).
Section 4.04 Application of Available Funds on Deposit in the
Collection Account. The Servicer shall apply, or shall cause the Indenture
Trustee to apply by written instruction to the Indenture Trustee, on each
Distribution Date, Available Investor Finance Charge and Administrative
Collections and Excess Finance Charge and Administrative Collections allocable
to Series 2001-2 in accordance with Section 4.07 and Available Investor
Principal Collections on deposit in the Collection Account with respect to such
Distribution Date to make the following distributions:
(a) On each Distribution Date, an amount equal to the
Available Investor Finance Charge and Administrative Collections and Excess
Finance Charge and Administrative Collections allocable to Series 2001-2 in
accordance with Section 4.07 with respect to such Distribution Date will be
distributed or deposited in the following priority:
(i) an amount equal to Class A Monthly Interest for
such Distribution Date, plus the amount of any Class A Monthly
Interest, or portion thereof, previously due but not distributed to
Class A Noteholders on a prior Distribution Date, plus the amount of
any Class A Additional Interest for such Distribution Date, plus the
amount of any Class A Additional Interest, or portion thereof,
previously due but not distributed to Class A Noteholders on a prior
Distribution Date, shall be distributed to the Paying Agent for
payment to Class A Noteholders on such Distribution Date;
(ii) an amount equal to Class B Monthly Interest for
such Distribution Date, plus the amount of any Class B Monthly
Interest previously due but not distributed to Class B Noteholders on
a prior Distribution Date, plus the amount of any Class B Additional
Interest for such Distribution Date, plus the amount of any Class B
Additional Interest, or portion thereof, previously due but not
distributed to Class B Noteholders on a prior Distribution Date, shall
be distributed to the Paying Agent for payment to Class B Noteholders
on the applicable Distribution Date;
(iii) (A) if HFC or an Affiliate of HFC is no longer
the Servicer, an amount equal to the Monthly Servicing Fee for such
Distribution Date, plus the amount of any Monthly Servicing Fee, or
portion thereof, previously due but not distributed to such Servicer
on a prior Distribution Date, shall be distributed to such Servicer
and (B) if HFC or an Affiliate of HFC is no longer the Administrator,
an amount equal to the Monthly Administration Fee for such
Distribution Date, plus the amount of any Monthly Administration Fee,
or portion thereof, previously due but not distributed to such
Administrator on a prior Distribution Date, shall be distributed to
such Administrator;
(iv) an amount equal to the Investor Defaulted
Amount for such Distribution Date shall be treated as a portion of
Available Investor Principal Collections for such Distribution Date;
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(v) an amount equal to the sum of the aggregate
amount of Investor Charge-offs and the amount of Subordinated
Principal Collections which have not been previously reimbursed shall
be treated as a portion of Available Investor Principal Collections
for such Distribution Date;
(vi) upon the occurrence of an Event of Default with
respect to Series 2001-2 and acceleration of the maturity of the
Series 2001-2 Notes pursuant to Section 5.03 of the Indenture, the
balance, if any, up to the outstanding Note Principal Balance shall be
treated as a portion of Available Investor Principal Collections for
such Distribution Date for distribution to the Series 2001-2
Noteholders;
(vii) if HFC or an Affiliate of HFC is the Servicer,
an amount equal to the Monthly Servicing Fee for such Distribution
Date that has not been paid to the Servicer and any Monthly Servicing
Fee, or portion thereof, due but not paid to the Servicer on a prior
Distribution Date shall be paid to the Servicer (unless such amount
has been netted against deposits to the Collection Account in
accordance with Section 8.04 of the Indenture);
(viii) if HFC or an Affiliate of HFC is the
Administrator, an amount equal to the Monthly Administration Fee for
such Distribution Date and any Monthly Administration Fee due but not
paid to the Administrator on a prior Distribution Date shall be paid
to the Administrator (unless such amount has been netted against
deposits to the Collection Account in accordance with Section 8.04 of
the Indenture);
(ix) on each Distribution Date from and after the
Reserve Account Funding Date, but prior to the date on which the
Reserve Account terminates as described in Section 4.11(f), an amount
equal to the excess, if any, of the Required Reserve Account Amount
over the Available Reserve Account Amount shall be deposited into the
Reserve Account; and
(x) the balance, if any, will constitute a portion
of Excess Finance Charge and Administrative Collections for such
Distribution Date and will be available for allocation to other Series
in Excess Finance Charge Sharing Group One or to the Transferor, as
set forth in Section 8.08C of the Indenture.
(b) On each Distribution Date with respect to the Revolving
Period, an amount equal to the Available Investor Principal Collections
deposited in the Collection Account for the related Due Period shall be
distributed in the following order of priority:
(i) an amount equal to the excess, if any, of the
O/C Amount over the Required O/C Amount shall be paid to the
Transferor, for reduction of the O/C Amount, to the extent that the
Transferor Amount exceeds zero; and
(ii) the balance of such Available Investor
Principal Collections shall be treated as Shared Principal Collections
with respect to Principal Sharing Group One and applied in accordance
with Section 8.05 of the Indenture.
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(c) On each Distribution Date with respect to the Controlled
Accumulation Period or the Early Amortization Period, an amount equal to the
Available Investor Principal Collections deposited in the Collection Account
for the related Due Period shall be distributed or deposited in the following
order of priority:
(i) during the Controlled Accumulation Period and
prior to the payment in full of the Class A Notes, the Class B Notes
and the O/C Amount an amount equal to the Monthly Principal for such
Distribution Date shall be first, deposited into the Principal Funding
Account in an amount not to exceed the Controlled Deposit Amount and
second, an amount not to exceed the Excess O/C Amount shall be
distributed to the O/C Holder for reduction of the O/C Amount;
(ii) during the Early Amortization Period, an amount
equal to the Monthly Principal for such Distribution Date shall be
distributed to the Paying Agent for payment to the Class A Noteholders
on such Distribution Date and on each subsequent Distribution Date
until the Class A Note Principal Balance has been paid in full;
(iii) after giving effect to the distribution
referred to in clause (ii) above, during the Early Amortization
Period, an amount equal to the Monthly Principal remaining, if any,
shall be distributed to the Paying Agent for payment to the Class B
Noteholders on such Distribution Date and on each subsequent
Distribution Date until the Class B Note Principal Balance has been
paid in full;
(iv) after the Class B Note Principal Balance has
been reduced to zero, during the Early Amortization Period, an amount
equal to the Monthly Principal remaining, if any, shall be distributed
to the O/C Holder, for reduction of the O/C Amount, on such
Distribution Date and on each subsequent Distribution Date until the
O/C Amount has been paid in full; and
(v) the balance of such Available Investor Principal
Collections shall be treated as Shared Principal Collections with
respect to Principal Sharing Group One and applied in accordance with
Section 8.05 of the Indenture.
(d) On the earlier to occur of (i) the first Distribution
Date with respect to the Early Amortization Period and (ii) the Expected
Principal Payment Date, the Indenture Trustee, acting in accordance with
instructions from the Servicer, shall withdraw from the Principal Funding
Account and distribute to the Paying Agent for payment first, to the Class A
Noteholders up to the Class A Note Principal Balance and second, to the Class B
Noteholders up to the Class B Note Principal Balance, the amounts deposited
into the Principal Funding Account pursuant to subsection 4.04(c)(i).
(e) The Controlled Accumulation Period is scheduled to
commence at the close of business on July 31, 2003; provided, however, that, if
the Accumulation Period Length (determined as described below) is less than 12
Due Periods, the date on which the Controlled Accumulation Period actually
commences will be delayed to the first Business Day of the Due Period that is
the number of whole Due Periods prior to the Expected Principal Payment Date at
least equal to the Accumulation Period Length and, as a result, the number of
Due Periods in the
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Controlled Accumulation Period will at least equal the Accumulation Period
Length. On the Determination Date immediately preceding the July 2003
Distribution Date, and each Determination Date thereafter until the Controlled
Accumulation Period begins, the Servicer will determine the "ACCUMULATION
PERIOD LENGTH" which will equal the number of whole Due Periods such that the
sum of the Accumulation Period Factors for each Due Period during such period
will be equal to or greater than the Required Accumulation Factor Number;
provided, however, that the Accumulation Period Length will not be determined
to be less than one Due Period; provided further, however, that the
determination of the Accumulation Period Length may be changed at any time if
an Officer's Certificate is delivered indicating that such action will not
result in an Adverse Effect.
Section 4.05 Investor Charge-offs. On each Determination Date, the
Servicer shall calculate the Investor Defaulted Amount, if any, for the related
Distribution Date. If, on any Distribution Date, the Investor Defaulted Amount
for such Distribution Date exceeds the amount available therefor pursuant to
Section 4.04(a)(iv) with respect to such Due Period, the Invested Amount will
be reduced by the amount of such excess, but not by more than the Investor
Defaulted Amount for such Distribution Date (such reduction, an "INVESTOR
CHARGE-OFF").
Section 4.06 Subordinated Principal Collections. On each Distribution
Date, the Servicer shall apply, or shall cause the Indenture Trustee to
withdraw from the Collection Account and apply, Subordinated Principal
Collections with respect to such Distribution Date, in an amount equal to the
lesser of the (a) Investor Percentage of all Collections of Principal
Receivables received during the preceding Due Period and (b) the Monthly
Subordination Amount for the preceding Due Period in accordance with the
priority set forth in clauses (i) through (iii) of Section 4.04(a). On each
Distribution Date, the Invested Amount shall be reduced by the amount of
Subordinated Principal Collections for such Distribution Date.
Section 4.07 Excess Finance Charge and Administrative Collections.
Subject to Section 8.08C of the Indenture, Excess Finance Charge and
Administrative Collections with respect to the Excess Finance Charge Sharing
Series in Excess Finance Charge Sharing Group One for any Distribution Date
will be allocated to Series 2001-2 in an amount equal to the product of (a) the
aggregate amount of Excess Finance Charge and Administrative Collections with
respect to all the Excess Finance Charge Sharing Series in Excess Finance
Charge Sharing Group One for such Distribution Date and (b) a fraction, the
numerator of which is the Finance Charge Shortfall for Series 2001-2 for such
Distribution Date and the denominator of which is the aggregate amount of
Finance Charge Shortfalls for all the Excess Finance Charge Sharing Series in
Excess Finance Charge Sharing Group One for such Distribution Date. The
"FINANCE CHARGE SHORTFALL" for Series 2001-2 for any Distribution Date will be
equal to the excess, if any, of (a) the full amount required to be paid,
without duplication, pursuant to subsections 4.04(a)(i) through (ix) on such
Distribution Date over (b) the Available Investor Finance Charge and
Administrative Collections with respect to the Due Period related to such
Distribution Date.
Section 4.08 Shared Principal Collections. Subject to Section 8.05 of
the Indenture, Shared Principal Collections with respect to the Series in
Principal Sharing Group One for any Distribution Date will be allocated to
Series 2001-2 in an amount equal to the product of (a) the aggregate amount of
Shared Principal Collections with respect to all Principal Sharing Series in
Principal Sharing Group One for such Distribution Date and (b) a fraction, the
numerator of
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which is the Series 2001-2 Principal Shortfall for such Distribution Date and
the denominator of which is the aggregate amount of Principal Shortfalls for
all the Series which are Principal Sharing Series in Principal Sharing Group
One for such Distribution Date. The "SERIES 2001-2 PRINCIPAL SHORTFALL" will be
equal to (a) for any Distribution Date with respect to the Revolving Period,
zero, (b) for any Distribution Date with respect to the Controlled Accumulation
Period, the excess, if any, of the Controlled Deposit Amount for such
Distribution Date and the Excess O/C Amount with respect to the Due Period
related to such Distribution Date over the amount of Available Investor
Principal Collections for such Distribution Date (excluding any portion thereof
attributable to Shared Principal Collections), and (c) for any Distribution
Date with respect to the Early Amortization Period, the excess, if any, of the
Adjusted Invested Amount over the amount of Available Investor Principal
Collections for the Due Period related to such Distribution Date (excluding any
portion thereof attributable to Shared Principal Collections).
Section 4.09 [Reserved].
Section 4.10 Principal Funding Account.
(a) The Indenture Trustee shall establish and maintain with
an Eligible Institution, which may be the Indenture Trustee, in the name of the
Trust, on behalf of the Trust, for the benefit of the Series 2001-2
Noteholders, a segregated trust account with the corporate trust department of
such Eligible Institution (the "PRINCIPAL FUNDING ACCOUNT"), bearing a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Series 2001-2 Noteholders. The Indenture Trustee shall
possess all right, title and interest in all funds on deposit from time to time
in the Principal Funding Account and in all proceeds thereof. The Principal
Funding Account shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Series 2001-2 Noteholders. If at any time the
institution holding the Principal Funding Account ceases to be an Eligible
Institution, the Transferor shall notify the Indenture Trustee, and the
Indenture Trustee upon being notified (or the Servicer on its behalf) shall,
within 10 Business Days, (or such longer period as to which the Rating Agency
has consented) establish a new Principal Funding Account meeting the conditions
specified above with an Eligible Institution, and shall transfer any cash or
any investments to such new Principal Funding Account. The Indenture Trustee,
at the direction of the Servicer, shall (i) make withdrawals from the Principal
Funding Account from time to time, in the amounts and for the purposes set
forth in this Indenture Supplement, and (ii) on each Distribution Date (from
and after the commencement of the Controlled Accumulation Period) prior to the
termination of the Principal Funding Account, make deposits into the Principal
Funding Account in the amounts specified in, and otherwise in accordance with,
subsection 4.04(c)(i).
(b) Funds on deposit in the Principal Funding Account shall
be invested at the direction of the Servicer by the Indenture Trustee in
Eligible Investments. Funds on deposit in the Principal Funding Account on any
Distribution Date, after giving effect to any withdrawals from the Principal
Funding Account on such Distribution Date, shall be invested in such
investments that will mature so that such funds will be available for
withdrawal on or prior to the following Distribution Date. The Indenture
Trustee shall:
(i) hold each Eligible Investment that constitutes
investment property through a Securities Intermediary, which
Securities Intermediary shall agree with the Indenture Trustee that
(A) such investment property at all times shall be credited to a
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securities account of the Indenture Trustee, (B) all property credited
to such securities account shall be treated as a financial asset, (C)
such Securities Intermediary shall treat the Indenture Trustee as
entitled to exercise the rights that comprise each financial asset
credited to such securities account, (D) such Securities Intermediary
shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity, (E)
such Securities Intermediary shall not agree with any person or entity
other than the Indenture Trustee to comply with entitlement orders
originated by any person or entity other than the Indenture Trustee,
(F) such securities account and all property credited thereto shall
not be subject to any lien, security interest, right of set-off, or
encumbrance in favor of such Securities Intermediary or anyone
claiming through such Securities Intermediary (other than the
Indenture Trustee), and (G) such agreement between such Securities
Intermediary and the Indenture Trustee shall be governed by the laws
of the State of
New York; and
(ii) maintain possession of each other Eligible
Investment not described in clause (i) above;
provided, that no Eligible Investment shall be disposed of prior to its
maturity date. Terms used in clause (i) above that are defined in the
New York
UCC and not otherwise defined herein shall have the meaning set forth in the
New York UCC.
On each Distribution Date with respect to the Controlled
Accumulation Period and on the first Distribution Date with respect to the
Early Amortization Period, the Indenture Trustee, acting at the Servicer's
direction given on or before such Distribution Date, shall transfer from the
Principal Funding Account to the Collection Account the Principal Funding
Investment Proceeds on deposit in the Principal Funding Account for application
as Available Investor Finance Charge and Administrative Collections for such
Distribution Date.
Principal Funding Investment Proceeds (including reinvested
interest) shall not be considered part of the amounts on deposit in the
Principal Funding Account for purposes of this Indenture Supplement.
Section 4.11 Reserve Account.
(a) The Indenture Trustee shall establish and maintain with
an Eligible Institution, which may be the Indenture Trustee in the name of the
Trust, on behalf of the Trust, for the benefit of the Series 2001-2
Noteholders, a segregated trust account with the corporate trust department of
such Eligible Institution (the "RESERVE ACCOUNT"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 2001-2 Noteholders. The Indenture Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Reserve
Account and in all proceeds thereof. The Reserve Account shall be under the
sole dominion and control of the Indenture Trustee for the benefit of the
Series 2001-2 Noteholders. If at any time the institution holding the Reserve
Account ceases to be an Eligible Institution, the Transferor shall notify the
Indenture Trustee, and the Indenture Trustee upon being notified (or the
Servicer on its behalf) shall, within 10 Business Days (or such longer period
as to which the Rating Agency has consented), establish a new Reserve Account
meeting the conditions specified above with an Eligible Institution, and shall
transfer
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any cash or any investments to such new Reserve Account. The Indenture Trustee,
at the direction of the Servicer, shall (i) make withdrawals from the Reserve
Account from time to time in an amount up to the Available Reserve Account
Amount at such time, for the purposes set forth in this Indenture Supplement,
and (ii) on each Distribution Date (from and after the Reserve Account Funding
Date) prior to termination of the Reserve Account, make a deposit into the
Reserve Account in the amount specified in, and otherwise in accordance with,
subsection 4.04(a)(ix).
(b) Funds on deposit in the Reserve Account shall be invested
at the direction of the Servicer by the Indenture Trustee in Eligible
Investments. Funds on deposit in the Reserve Account on any Distribution Date,
after giving effect to any withdrawals from the Reserve Account on such
Distribution Date, shall be invested in such investments that will mature so
that such funds will be available for withdrawal on or prior to the following
Distribution Date. The Indenture Trustee shall:
(i) hold each Eligible Investment that constitutes
investment property through a Securities Intermediary, which
Securities Intermediary shall agree with the Indenture Trustee that
(A) such investment property at all times shall be credited to a
securities account of the Indenture Trustee, (B) all property credited
to such securities account shall be treated as a financial asset, (C)
such Securities Intermediary shall treat the Indenture Trustee as
entitled to exercise the rights that comprise each financial asset
credited to such securities account, (D) such Securities Intermediary
shall comply with entitlement orders originated by the Indenture
Trustee without the further consent of any other person or entity, (E)
such Securities Intermediary shall not agree with any person or entity
other than the Indenture Trustee to comply with entitlement orders
originated by any person or entity other than the Indenture Trustee,
(F) such securities account and all property credited thereto shall
not be subject to any lien, security interest, right of set-off, or
encumbrance in favor of such Securities Intermediary or anyone
claiming through such Securities Intermediary (other than the
Indenture Trustee), and (G) such agreement between such Securities
Intermediary and the Indenture Trustee shall be governed by the laws
of the State of
New York; and
(ii) maintain possession of each other Eligible
Investment not described in clause (i) above;
provided, that no Eligible Investment shall be disposed of prior to its
maturity date. Terms used in clause (i) above that are defined in the
New York
UCC and not otherwise defined herein shall have the meaning set forth in the
New York UCC.
On each Distribution Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Distribution Date
on funds on deposit in the Reserve Account shall be retained in the Reserve
Account to the extent that the Available Reserve Account Amount is less than
the Required Reserve Account Amount, and the balance, if any, shall be
deposited into the Collection Account and included in Available Investor
Finance Charge and Administrative Collections for such Distribution Date. For
purposes of determining the availability of funds or the balance in the Reserve
Account for any reason under this
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Indenture Supplement, except as otherwise provided in the preceding sentence,
investment earnings on such funds shall be deemed not to be available or on
deposit.
(c) On or before each Distribution Date with respect to the
Controlled Accumulation Period and on the first Distribution Date with respect
to the Early Amortization Period, the Servicer shall calculate the Reserve Draw
Amount; provided, however, that such amount will be reduced to the extent that
funds otherwise would be available for deposit in the Reserve Account under
Section 4.04(a)(ix) with respect to such Distribution Date.
(d) In the event that for any Distribution Date the Reserve
Draw Amount is greater than zero, the Reserve Draw Amount, up to the Available
Reserve Account Amount, shall be withdrawn from the Reserve Account on such
Distribution Date by the Indenture Trustee (acting in accordance with the
instructions of the Servicer) and deposited into the Collection Account for
application as Available Investor Finance Charge and Administrative Collections
for such Distribution Date.
(e) In the event that the Reserve Account Surplus on any
Distribution Date, after giving effect to all deposits to and withdrawals from
the Reserve Account with respect to such Distribution Date, is greater than
zero, the Indenture Trustee, acting in accordance with the instructions of the
Servicer, shall withdraw from the Reserve Account and pay to the holder of the
interest of the Transferor Certificate an amount equal to such Reserve Account
Surplus.
(f) Upon the earliest to occur of (i) the termination of the
Trust pursuant to Article VIII of the Trust Agreement, (ii) if the Controlled
Accumulation Period has not commenced, the first Distribution Date relating to
the Early Amortization Period and (iii) if the Controlled Accumulation Period
has commenced, the earlier of the first Distribution Date with respect to the
Early Amortization Period and the Expected Principal Payment Date, the
Indenture Trustee, acting in accordance with the instructions of the Servicer,
after the prior payment of all amounts owing to the Series 2001-2 Noteholders
that are payable from the Reserve Account as provided herein, shall withdraw
from the Reserve Account and pay first, to the O/C Holder for reduction of the
O/C Amount until reduced to zero and second, to the Transferor, all amounts, if
any, on deposit in the Reserve Account and the Reserve Account shall be deemed
to have terminated for purposes of this Indenture Supplement; provided,
however, that following the occurrence of an Event of Default with respect to
Series 2001-2 and acceleration of the maturity of the Series 2001-2 Notes
pursuant to Section 5.03 of the Indenture, the Servicer shall withdraw from the
Reserve Account all amounts on deposit therein and the Indenture Trustee or the
Servicer shall deposit such amounts in the Collection Account for distribution
to the Series 2001-2 Noteholders in accordance with Section 5.02 to fund any
shortfalls in amounts owed to such Series 2001-2 Noteholders.
Section 4.12 Determination of LIBOR.
(a) On each LIBOR Determination Date, the Indenture Trustee
shall determine LIBOR on the basis of the rate for deposits in United States
dollars for a one-month period which appears on Telerate Page 3750 as of 11:00
a.m., London time, on such date. If such rate does not appear on Telerate Page
3750, the rate for that LIBOR Determination Date shall be determined on the
basis of the rates at which deposits in United States dollars are offered
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by the Reference Banks at approximately 11:00 a.m., London time, on that day to
prime banks in the London interbank market for a one-month period. The
Indenture Trustee shall request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that LIBOR Determination Date shall be
the arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that LIBOR Determination Date will be the
arithmetic mean of the rates quoted by major banks in
New York City, selected
by the Servicer, at approximately 11:00 a.m.,
New York City time, on that day
for loans in United States dollars to leading European banks for a one-month
period.
(b) The Class B Note Interest Rate applicable to the then
current and the immediately preceding Interest Periods may be obtained by
telephoning the Indenture Trustee at its Corporate Trust Office or such other
address and telephone number as shall be designated by the Indenture Trustee
for such purpose by prior written notice by the Indenture Trustee to each
Series 2001-2 Noteholder from time to time.
(c) On each LIBOR Determination Date, the Indenture Trustee
shall send to the Servicer and the Administrator by facsimile transmission,
notification of LIBOR for the following Interest Period.
Section 4.13 Investment Instructions. Any investment instructions
required to be given to the Indenture Trustee pursuant to the terms hereof must
be given to the Indenture Trustee no later than 12:00 p.m. (
New York City time)
on the date such investment is to be made. In the event the Indenture Trustee
receives such investment instruction later than such time, the Indenture
Trustee may, but shall have no obligation to, make such investment. In the
event the Indenture Trustee is unable to make an investment required in an
investment instruction received by the Indenture Trustee after 12:00 p.m. (
New
York City time) on such day, such investment shall be made by the Indenture
Trustee on the next succeeding Business Day. In no event shall the Indenture
Trustee be liable for any investment not made pursuant to investment
instructions received after 12:00 p.m. (New York City time) on the day such
investment is requested to be made.
Section 4.14 Exchange of Notes for Transferor Amount. If the
Transferor purchases Series 2001-2 Notes from Series 2001-2 Noteholders, the
Transferor may, on any Distribution Date (after giving effect to all required
allocations and payments on such Distribution Date), cancel such purchased
Series 2001-2 Notes by delivering a written request to the Indenture Trustee to
do so; provided, however, that the Transferor may only cancel Class A and Class
B Notes it has purchased if the Rating Agency Condition has been satisfied and
a credit enhancement deficiency will not result. The Transferor may in
connection with such cancellation reduce a portion of the O/C Amount and may
(but shall not be required to) cancel such portion of the O/C Amount, provided
that the reduction in the O/C Amount resulting from such cancellation may not
result in the O/C Amount being less than the Required O/C Amount. As a result
of any cancellation of Series 2001-2 Notes pursuant to this Section, (a) the
Invested Amount shall be reduced by (i) the aggregate principal amount of such
purchased Series 2001-2 Notes and (ii) the reduction in the O/C Amount and (b)
the Transferor Amount shall be increased in an amount equal to such reduction
in the Invested Amount.
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ARTICLE V
DELIVERY OF SERIES 2001-2 NOTES;
DISTRIBUTIONS; REPORTS TO SERIES 2001-2 NOTEHOLDERS
Section 5.01 Delivery and Payment for the Series 2001-2 Notes. With
respect to the Series 2001-2 Notes which are in certificated form, the Issuer
shall execute and the Indenture Trustee shall authenticate the Series 2001-2
Notes in accordance with Section 2.03 of the Indenture. The Indenture Trustee
shall deliver those Series 2001-2 Notes to or upon the order of the Trust when
so authenticated.
Section 5.02 Distributions.
(a) On each Distribution Date, the Paying Agent shall
distribute to each Class A Noteholder of record on the related Record Date
(other than as provided in Section 11.02 of the Indenture) such Class A
Noteholder's pro rata share of the amounts held by the Paying Agent that are
allocated and available on such Distribution Date to pay interest on the Class
A Notes pursuant to this Indenture Supplement.
(b) On each Distribution Date, the Paying Agent shall
distribute to each Class A Noteholder of record on the related Record Date such
Class A Noteholder's pro rata share of the amounts held by the Paying Agent
that are allocated and available on such Distribution Date to pay principal of
the Class A Notes pursuant to this Indenture Supplement.
(c) On each Distribution Date, the Paying Agent shall
distribute to each Class B Noteholder of record on the related Record Date
(other than as provided in Section 11.02 of the Indenture) such Class B
Noteholder's pro rata share of the amounts held by the Paying Agent that are
allocated and available on such Distribution Date to pay interest on the Class
B Notes pursuant to this Indenture Supplement.
(d) On each Distribution Date, the Paying Agent shall
distribute to each Class B Noteholder of record on the related Record Date such
Class B Noteholder's pro rata share of the amounts held by the Paying Agent
that are allocated and available on such Distribution Date to pay principal of
the Class B Notes pursuant to this Indenture Supplement.
(e) On each Distribution Date, the Paying Agent shall
distribute to the O/C Holder, in immediately available funds, the amounts held
by the Paying Agent that are allocated and available on such Distribution Date
to reduce the O/C Amount pursuant to this Indenture Supplement.
(f) The distributions to be made pursuant to this Section
5.02 are subject to the provisions of Sections 2.06, 6.01 and 7.01 of the
Transfer and Servicing Agreement, Section 11.02 of the Indenture and Section
7.01 of this Indenture Supplement.
(g) Except as provided in Section 11.02 of the Indenture with
respect to a final distribution, distributions to Series 2001-2 Noteholders
hereunder shall be made by (i) check
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mailed to each Series 2001-2 Noteholder (at such Noteholder's address as it
appears in the Note Register), except that with respect to any Series 2001-2
Notes registered in the name of the nominee of a Clearing Agency, such
distribution shall be made in immediately available funds and (ii) without
presentation or surrender of any Series 2001-2 Note or the making of any
notation thereon.
Section 5.03 Reports and Statements to Series 2001-2 Noteholders.
(a) On each Distribution Date, the Paying Agent, on behalf of
the Indenture Trustee, shall, provided the Servicer has delivered a statement
substantially in the form of EXHIBIT C, forward to each Series 2001-2
Noteholder such statement substantially in the form of EXHIBIT C prepared by
the Servicer.
(b) Not later than the second Business Day preceding each
Distribution Date, the Servicer shall deliver to the Owner Trustee, the
Indenture Trustee, the Paying Agent and each Rating Agency (i) a statement
substantially in the form of EXHIBIT C prepared by the Servicer and (ii) a
certificate of an Authorized Officer substantially in the form of EXHIBIT D;
provided that the Servicer may amend the form of EXHIBIT C and EXHIBIT D, from
time to time.
(c) A copy of each statement or certificate provided pursuant
to paragraph (a) or (b) may be obtained by any Series 2001-2 Noteholder by a
request in writing to the Servicer.
(d) On or before March 31 of each calendar year, beginning
with calendar year 2002, the Paying Agent, on behalf of the Indenture Trustee,
shall furnish or cause to be furnished to each Person who at any time during
the preceding calendar year was a Series 2001-2 Noteholder, a statement
prepared by the Servicer containing the information which is required to be
contained in the statement to Series 2001-2 Noteholders, as set forth in
paragraph (a) above, aggregated for such calendar year together with other
information as is required to be provided by an issuer of indebtedness under
the Code. Such obligation of the Paying Agent shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Paying Agent pursuant to any requirements of the Code as from
time to time in effect.
(e) On or before March 31 of each calendar year, beginning
with March 31, 2002, the Paying Agent, on behalf of the Indenture Trustee,
shall forward to each Series 2001-2 Noteholder copies of each certificate and
report furnished to the Indenture Trustee pursuant to Section 3.05 or 3.06 of
the Transfer and Servicing Agreement.
ARTICLE VI
SERIES 2001-2 AMORTIZATION EVENTS
Section 6.01 Series 2001-2 Amortization Events. If any one of the
following events shall occur with respect to Series 2001-2:
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(a) failure on the part of the Transferor (i) to make any
payment or deposit required by the terms of the Transfer and Servicing
Agreement, the Indenture or this Indenture Supplement on or before the date
occurring five Business Days after the date such payment or deposit is required
to be made therein or herein or (ii) duly to observe or perform in any material
respect any other covenants or agreements of the Transferor set forth in the
Transfer and Servicing Agreement, the Indenture or this Indenture Supplement,
which failure has an Adverse Effect on the Series 2001-2 Noteholders and which
continues unremedied and continues to materially and adversely affect the
interests of the Series 2001-2 Noteholders for a period of 60 days after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Transferor by the Indenture Trustee, or
to the Transferor and the Indenture Trustee by any Holder of the Series 2001-2
Notes;
(b) any representation or warranty made by the Transferor in
the Transfer and Servicing Agreement, or any information contained in a
computer file or microfiche list required to be delivered by the Transferor
pursuant to Section 2.01 or subsection 2.09(h) of the Transfer and Servicing
Agreement shall prove to have been incorrect in any material respect when made
or when delivered, which continues to be incorrect in any material respect for
a period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Transferor by
the Indenture Trustee, or to the Transferor and the Indenture Trustee by any
Holder of the Series 2001-2 Notes and as a result of which an Adverse Effect
occurs with respect to the Series 2001-2 Noteholders and such Adverse Effect
continues for the designated period; provided, however, that a Series 2001-2
Amortization Event pursuant to this subsection 6.01(b) shall not be deemed to
have occurred hereunder if the Transferor has accepted reassignment of the
related Receivable, or all of such Receivables, if applicable, during such
period in accordance with the provisions of the Transfer and Servicing
Agreement;
(c) a failure by the Transferor to convey Receivables in
Additional Accounts or Participation Interests to the Trust within five
Business Days after the day on which it is required to convey such Receivables
or Participation Interests pursuant to subsection 2.09(a) of the Transfer and
Servicing Agreement;
(d) any Servicer Default shall occur which has an Adverse
Effect on the Series 2001-2 Noteholders;
(e) the average Series Portfolio Yield for any three
consecutive Due Periods is reduced to a rate which is less than the average of
the Base Rates for such period; (f) the Class A Note Principal Balance or the
Class B Note Principal Balance shall not be paid in full on the Expected
Principal Payment Date;
(g) without limiting the foregoing, the occurrence of an
Event of Default with respect to Series 2001-2 and an acceleration of the
maturity of the Series 2001-2 Notes pursuant to Section 5.03 of the Indenture;
or
(h) the bankruptcy or insolvency of any other receivables
seller;
then, in the case of any event described in subparagraph (a), (b) or (d) after
the applicable grace period, if any, set forth in such subparagraphs, either
the Indenture Trustee or the Holders of
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Series 2001-2 Notes evidencing more than 50% of the aggregate Outstanding
Amount of Series 2001-2 Notes by notice then given in writing to the Transferor
and the Servicer (and to the Indenture Trustee if given by the Series 2001-2
Noteholders) may declare that an amortization event (a "SERIES 2001-2
AMORTIZATION EVENT") has occurred as of the date of such notice, and, in the
case of any event described in subparagraph (c), (e), (f), or (h), a Series
2001-2 Amortization Event shall occur without any notice or other action on the
part of the Indenture Trustee or the Series 2001-2 Noteholders immediately upon
the occurrence of such event.
ARTICLE VII
REDEMPTION OF SERIES 2001-2 NOTES;
SERIES FINAL MATURITY; FINAL DISTRIBUTIONS
Section 7.01 Optional Redemption of Series 2001-2 Notes.
(a) On any day occurring on or after the date on which the
Note Principal Balance is reduced to 10% or less of the sum of the Class A Note
Initial Principal Balance and the Class B Note Initial Principal Balance the
Transferor shall have the option to redeem the Series 2001-2 Notes and the O/C
Amount, at a purchase price equal to (i) if such day is a Distribution Date,
the Reassignment Amount for such Distribution Date or (ii) if such day is not a
Distribution Date, the Reassignment Amount for the Distribution Date following
such day.
(b) The Transferor shall give the Servicer and the Indenture
Trustee at least 30 days prior written notice of the date on which the
Transferor intends to exercise such optional redemption. Not later than 1:00
p.m., New York City time, on such day the Transferor shall deposit into the
Principal Funding Account in immediately available funds the excess of the
Reassignment Amount (less the O/C Amount) over the amount, if any, on deposit
in the Principal Funding Account. The remaining Reassignment Amount shall be
distributed to the O/C Holder for reduction of the O/C Amount. Such redemption
option is subject to payment in full of the Reassignment Amount. Following such
deposit into the Principal Funding Account and such distribution to the O/C
Holder in accordance with the foregoing, the Invested Amount for Series 2001-2
shall be reduced to zero and the Series 2001-2 Noteholders shall have no
further interest in or claim against the Trust. The Reassignment Amount shall
be distributed as set forth in subsection 7.02(a).
Section 7.02 Series Final Maturity.
(a) The amount to be paid by the Transferor with respect to
Series 2001-2 in connection with (i) a reassignment of Receivables to the
Transferor pursuant to Section 2.06 of the Transfer and Servicing Agreement or
(ii) an Optional Redemption of the Notes pursuant to Section 7.01, shall be the
Reassignment Amount for the first Distribution Date following the Due Period in
which the reassignment obligation arises under the Transfer and Servicing
Agreement. With respect to the Reassignment Amount deposited into the
Collection Account pursuant to Section 7.01 herein or Section 2.06 of the
Transfer and Servicing Agreement or the proceeds from any Foreclosure Remedy
pursuant to Section 5.05 of the Indenture, the Indenture Trustee
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shall, in accordance with the written direction of the Servicer, not later than
1:00 p.m. New York City time, on the related Distribution Date, make deposits
or distributions of the following amounts (in the priority set forth below and,
in each case after giving effect to any deposits and distributions otherwise to
be made on such date) in immediately available funds:
(i) (x) the Class A Note Principal Balance on such
Distribution Date will be distributed to the Paying Agent for payment
to the Class A Noteholders and (y) an amount equal to the sum of (A)
Class A Monthly Interest for such Distribution Date, (B) any Class A
Monthly Interest previously due but not distributed to the Class A
Noteholders on a prior Distribution Date and (C) the amount of Class A
Additional Interest, if any, for such Distribution Date and any Class
A Additional Interest previously due but not distributed to the Class
A Noteholders on any prior Distribution Date, will be distributed to
the Paying Agent for payment to the Class A Noteholders;
(ii) (x) the Class B Note Principal Balance on such
Distribution Date will be distributed to the Paying Agent for payment
to the Class B Noteholders and (y) an amount equal to the sum of (A)
Class B Monthly Interest for such Distribution Date, (B) any Class B
Monthly Interest previously due but not distributed to the Class B
Noteholders on a prior Distribution Date and (C) the amount of Class B
Additional Interest, if any, for such Distribution Date and any Class
B Additional Interest previously due but not distributed to the Class
B Noteholders on any prior Distribution Date, will be distributed to
the Paying Agent for payment to the Class B Noteholders; and
(iii) the O/C Amount on such Distribution Date will
be distributed to the Paying Agent for payment to the O/C Holder.
(b) Notwithstanding anything to the contrary in this
Indenture Supplement, the Indenture or the Transfer and Servicing Agreement,
all amounts distributed to the Paying Agent pursuant to subsection 7.02(a) for
payment to the Series 2001-2 Noteholders shall be deemed distributed in full to
the Series 2001-2 Noteholders on the date on which such funds are distributed
to the Paying Agent pursuant to this Section and shall be deemed to be a final
distribution pursuant to Section 11.02 of the Indenture.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01 Ratification of Indenture. As supplemented by this
Indenture Supplement, the Indenture is in all respects ratified and confirmed
and the Indenture as so supplemented by this Indenture Supplement shall be
read, taken and construed as one and the same instrument.
Section 8.02 Counterparts. This Indenture Supplement may be executed
in two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
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Section 8.03 Governing Law. THIS INDENTURE SUPPLEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 8.04 Transfer of the O/C Amount. Notwithstanding anything to
the contrary in this Indenture Supplement, no interest in the O/C Amount may be
directly or indirectly sold, assigned, pledged, hypothecated, exchanged,
participated or otherwise transferred (other than in connection with the
transfer upon initial issuance to the Indenture Trustee as security for the
Series 2001-2 Notes) except to a Person who is a "United States person" for
United States federal income tax purposes and only upon the prior delivery of a
Tax Opinion to the Indenture Trustee, and any such transfer in violation of
these requirements shall be null and void ab initio.
Section 8.05 Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Agreement has been executed and delivered
by Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust, in no event shall Wilmington Trust
Company in its individual capacity have any liability in respect of the
representations, warranties, or obligations of the Trust hereunder or under any
other document, as to all of which recourse shall be had solely to the assets
of the Trust, and for all purposes of this Agreement and each other document,
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 8.06 Perfection of Security Interest.
(a) The Issuer hereby represents and warrants, as of the
closing date, that:
(i) this Agreement creates a valid and continuing
security interest (as defined in the applicable UCC) in the
Receivables in favor of the Indenture Trustee on behalf of the Holders
of the Notes including the Series 2001-2 Noteholders, which security
interest is prior to all other liens, and is enforceable as such as
against creditors of and purchasers from the Issuer;
(ii) the Receivables constitutes "accounts" within
the meaning of the applicable UCC;
(iii) the Issuer owns and has good and marketable
title to the Receivables free and clear of any lien, claim or
encumbrance of any Person;
(iv) the Issuer 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
Receivables granted to the Indenture Trustee on behalf of the Holders
of the Notes including the Series 2001-2 Noteholders hereunder;
(v) other than the security interest granted to the
Indenture Trustee, pursuant to this Agreement, the Issuer has not
pledged, assigned, sold, granted a security
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interest in, or otherwise conveyed any of the Receivables. The Issuer
has not authorized the filing of and is not aware of any financing
statements against the Issuer that include a description of collateral
covering the Receivables other than any financing statement relating to
the security interest granted to the Indenture Trustee hereunder or
that has been terminated. The Issuer is not aware of any judgment or
tax lien filings against the Issuer.
(b) The Indenture Trustee may not waive a breach of any of
the foregoing representations unless prior to such waiver (1) it has notified
Standard & Poor's Rating Service ("S&P") of its intention to waive such breach
and S&P has informed the Indenture Trustee, and the Indenture Trustee has
informed the Series 2001-2 Noteholders, as to whether such waiver will result
in a downgrade of the Series 2001-2 Notes and (2) the Indenture Trustee has
subsequently received the unanimous consent of the Series 2001-2 Noteholders to
such waiver.
Section 8.07 Transfer Restrictions. Each purchaser or transferee of a
Note that is a Plan or a person acting on behalf of or investing the assets of
a Plan shall be deemed to represent that its purchase and continued holding of
the Note will be covered by a U.S. Department of Labor prohibited transaction
class exemption.
Section 8.08 Notice of Servicing Delegation. To the extent that the
Servicer delegates any of its servicing duties pursuant to Section 5.07 of the
Transfer and Servicing Agreement, other than to Household Corporation or an
affiliate thereof, the Issuer shall provide, or cause to be provided, written
notice to Standard & Poor's of such a delegation of servicing duties by the
Servicer.
Section 8.09 Zero Balance Account Removal. To the extent that a Zero
Balance Account, having a zero balance for less than 180 consecutive days, is
the subject of a removal pursuant to Section 2.10 of the Transfer and Servicing
Agreement, the Issuer shall provide, or cause to be provided, written notice of
such removal to Standard & Poor's.
Section 8.10 Notice of Insolvency Events. To the extent that an
Insolvency Event shall occur with respect to (a) the Transferor, as specified
in Section 6.01 of the Transfer and Servicing Agreement, (b) the Bank, as
specified in Section 8.02 of the HRAC RPA, or (c) HRAC, as specified in Section
8.02 of the Transferor RPA, the Issuer shall provide, or cause to be provided,
written notice of such occurrence to Standard & Poor's.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Indenture
Supplement to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as
Owner Trustee on behalf of the HOUSEHOLD
PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST I
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Financial Services Officer
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
Indenture Trustee and Securities Intermediary
By: /s/ ▇▇▇▇▇▇▇▇ ▇. CHILD
-------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Child
Title: Vice President
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