**Exhibit10.1**

 

**EXECUTIONCOPY**

 

 

 

**CSGQTRUST**

 

 

Issuer,

 

**CITIBANK,N.A.**

 

Note Administrator

 

and

 

**U.S.BANK NATIONAL ASSOCIATION**

 

Indenture Trustee

 

 

**MASTERINDENTURE**

 

Dated as of June 25, 2002

 

 

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**TABLE OFCONTENTS**

 
| ARTICLE  I  | DEFINITIONS         |
|-------------|---------------------|
|        | Section 1.01.       | Definitions |
|        | Section  1.02.      | Other  Definitional Provisions |
| ARTICLE  II | THE  NOTES          |
|        | Section 2.01.       | Form Generally |
|        | Section 2.02.       | Denominations |
|        | Section 2.03.       | Execution, Authentication and Delivery |
|        | Section 2.04.       | Authenticating Agent |
|        | Section 2.05.       | Registration of and Limitations on  Transfer and Exchange  of Notes |
|        | Section 2.06.       | Mutilated, Destroyed, Lost or Stolen  Notes |
|        | Section 2.07.       | Persons Deemed Owners |
|        | Section 2.08.       | Appointment of Paying Agent |
|        | Section 2.09.       | Access to List of Noteholders’ Names and  Addresses |
|        | Section 2.10.       | Cancellation |
|        | Section 2.11.       | New Issuances |
| ARTICLE III | COVENANTS OF ISSUER |
|        | Section 3.01.       | Payment of Principal and Interest |
|        | Section 3.02.       | Maintenance of Office or Agency |
|        | Section 3.03.       | Money for Note Payments to Be Held in  Trust |
|        | Section 3.04.       | Existence |
|        | Section 3.05.       | Protection of Trust |
|        | Section 3.06.       | Opinions as to Collateral |
|        | Section 3.07.       | Performance of Obligations; Servicing of  Receivables |
|        | Section 3.08.       | Negative Covenants |
|        | Section 3.09.       | Statements as to Compliance |
|        | Section 3.10.       | Issuer May Consolidate, Etc., Only on  Certain Terms |
|        | Section 3.11.       | Successor Substituted |
|        | Section 3.12.       | No Other Business |
|        | Section 3.13.       | No Borrowing |
|             |                     |  |  |  |

 

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|        | Section 3.14.                             | Servicer’s Obligations. The Issuer shall  use all reasonable efforts to cause the Servicer to comply with all of its  obligations under the Transaction Documents |
|-------------|-------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|        | Section 3.15.                             | Guarantees, Loans, Advances and Other  Liabilities                                                                                                                     |
|        | Section 3.16.                             | Capital Expenditures                                                                                                                                                   |
|        | Section 3.17.                             | Removal of Administrator                                                                                                                                               |
|        | Section 3.18.                             | Restricted Payments                                                                                                                                                    |
|        | Section 3.19.                             | Notice of Events of Default                                                                                                                                            |
|        | Section 3.20.                             | Further Instruments and Acts                                                                                                                                           |
| ARTICLE  IV | SATISFACTION  AND DISCHARGE               |
|        | Section 4.01.                             | Satisfaction and Discharge of this  Indenture                                                                                                                          |
|        | Section 4.02.                             | Application of Trust Money                                                                                                                                             |
| ARTICLE  V  | REDEMPTION  EVENTS, DEFAULTS AND REMEDIES |
|        | Section 5.01.                             | Redemption Events                                                                                                                                                      |
|        | Section 5.02.                             | Events of Default                                                                                                                                                      |
|        | Section 5.03.                             | Acceleration of Maturity; Rescission and  Annulment                                                                                                                    |
|        | Section 5.04.                             | Collection of Indebtedness and Suits for  Enforcement by Indenture Trustee                                                                                             |
|        | Section 5.05.                             | Remedies; Priorities                                                                                                                                                   |
|        | Section 5.06.                             | Optional Preservation of the Collateral                                                                                                                                |
|        | Section 5.07.                             | Limitation on Suits                                                                                                                                                    |
|        | Section 5.08.                             | Unconditional Rights of Noteholders to  Receive Principal and Interest                                                                                                 |
|        | Section 5.09.                             | Restoration of Rights and Remedies                                                                                                                                     |
|        | Section 5.10.                             | Rights and Remedies Cumulative                                                                                                                                         |
|        | Section 5.11.                             | Delay or Omission Not Waiver                                                                                                                                           |
|        | Section 5.12.                             | Rights of Noteholders to Direct Indenture  Trustee                                                                                                                     |
|        | Section 5.13.                             | Waiver of Past Defaults                                                                                                                                                |
|        | Section 5.14.                             | Undertaking for Costs                                                                                                                                                  |
|        | Section 5.15.                             | Waiver of Stay or Extension Laws                                                                                                                                       |
|        | Section 5.16.                             | Sale of Receivables                                                                                                                                                    |
|        | Section 5.17.                             | Action on Notes                                                                                                                                                        |
|             |                                           |                                                                                                                                                                        |  |

 

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| ARTICLE  VI  | THE  INDENTURE TRUSTEE; THE NOTE ADMINISTRATOR                      |
|--------------|---------------------------------------------------------------------|
|         | Section 6.01.                                                       | Notice of Defaults |
|         | Section 6.02.                                                       | Certain Rights of Indenture Trustee and  Note Administrator |
|         | Section 6.03.                                                       | [Reserved] |
|         | Section 6.04.                                                       | Not Responsible for Recitals or Issuance  of Notes |
|         | Section 6.05.                                                       | May Hold Notes |
|         | Section 6.06.                                                       | Money Held in Trust |
|         | Section 6.07.                                                       | Compensation, Reimbursement and  Indemnification |
|         | Section 6.08.                                                       | Replacement of Indenture Trustee and Note  Administrator |
|         | Section 6.09.                                                       | Successor Indenture Trustee or Successor  Note Administrator by Merger |
|         | Section 6.10.                                                       | Appointment of Co-Indenture Trustee or  Separate Indenture Trustee |
|         | Section 6.11.                                                       | Eligibility; Disqualification |
|         | Section 6.12.                                                       | Tax Returns |
|         | Section 6.13.                                                       | Representations and Covenants of the  Indenture Trustee and the Note Administrator |
|         | Section 6.14.                                                       | Custody of the Collateral |
| ARTICLE VII  | NOTEHOLDERS’ LIST AND REPORTS BY INDENTURE  TRUSTEE AND ISSUER |
|         | Section 7.01.                                                       | Issuer to Furnish Indenture Trustee Names  and Addresses of Noteholders |
|         | Section 7.02.                                                       | Preservation of Information; Communications  to Noteholders |
| ARTICLE VIII | ALLOCATION AND APPLICATION OF COLLECTIONS                           |
|         | Section 8.01.                                                       | Collection of Money |
|         | Section 8.02.                                                       | Rights of Noteholders |
|         | Section 8.03.                                                       | Establishment of Collection Account |
|         | Section 8.04.                                                       | Collections; Daily Release of  Collections; Allocations |
|         | Section 8.05.                                                       | Shared Principal Collections |
|              |                                                                     |  |  |

 

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|        | Section 8.06.                             | [Reserved]                                              |
|-------------|-------------------------------------------|---------------------------------------------------------|
|        | Section 8.07.                             | Release of Collateral; Eligible Loan  Documents         |
|        | Section 8.08.                             | Opinion of Counsel                                      |
| ARTICLE  IX | DISTRIBUTIONS  AND REPORTS TO NOTEHOLDERS |
| ARTICLE  X  | SUPPLEMENTAL  INDENTURES                  |
|        | Section 10.01.                            | Supplemental Indentures Without Consent  of Noteholders |
|        | Section 10.02.                            | Supplemental Indentures with Consent of  Noteholders    |
|        | Section 10.03.                            | Execution of Supplemental Indentures                    |
|        | Section 10.04.                            | Effect of Supplemental Indenture                        |
|        | Section 10.05.                            | Reference in Notes to Supplemental  Indentures          |
| ARTICLE  XI | TERMINATION                               |
|        | Section 11.01.                            | Termination of Trust                                    |
|        | Section 11.02.                            | Final Distribution                                      |
|        | Section 11.03.                            | Termination Distributions                               |
| ARTICLE XII | MISCELLANEOUS                             |
|        | Section 12.01.                            | Compliance Certificates and Opinions etc                |
|        | Section 12.02.                            | Form of Documents Delivered to Indenture  Trustee       |
|        | Section 12.03.                            | Acts of Noteholders                                     |
|        | Section 12.04.                            | Notices, Etc. to Indenture Trustee and  Issuer          |
|        | Section 12.05.                            | Notices to Noteholders; Waiver                          |
|        | Section 12.06.                            | Alternate Payment and Notice Provisions                 |
|        | Section 12.07.                            | Effect of Headings and Table of Contents                |
|        | Section 12.08.                            | Successors and Assigns                                  |
|        | Section 12.09.                            | Severability                                            |
|        | Section 12.10.                            | Benefits of Indenture                                   |
|        | Section 12.11.                            | Legal Holidays                                          |
|        | Section 12.12.                            | GOVERNING LAW                                           |
|        | Section 12.13.                            | Counterparts                                            |
|        | Section 12.14.                            | Trust Obligation                                        |
|        | Section 12.15.                            | No Petition                                             |
|             |                                           |                                                         |  |

 

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|   | Section 12.16. | Limitation of Liability                                |
|--------|----------------|--------------------------------------------------------|
|   | Section 12.17. | Certain Commercial Law Representations  and Warranties |

 

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This MASTER INDENTURE,dated as of June 25, 2002 (herein, as amended, modified or supplemented fromtime to time as permitted hereby, called this “**Indenture**”), between CSGQ Trust, a business trust createdunder the laws of the State of Delaware (herein, together with its permittedsuccessors and assigns, called the “**Issuer**”or the “**Trust**”), U.S. BankNational Association, a national banking association, as indenture trustee(herein, together with its successors in the trusts hereunder, called the “**Indenture Trustee**”) and Citibank, N.A.,a national association, as note administrator (herein, together with itssuccessors in the trusts hereunder, called the “**Note Administrator**”). This Indenture may be supplemented at any time and from time to time byan indenture supplement in accordance with Article X hereof (an “**Indenture Supplement**,” and any IndentureSupplement together with this Indenture and amendments hereof collectivelyreferred to as the “**Agreement**”).  If a conflict exists between the terms andprovisions of this Indenture and any Indenture Supplement, the terms andprovisions of the Indenture Supplement shall be controlling with respect to therelated Series.

 

PRELIMINARY STATEMENT

 

The Issuer has duly authorized the execution anddelivery of this Indenture to provide for issuances of its asset backed notesin one or more series (the “**Notes**”)and the issuance of interests representing an amount of Receivables securingany such Series of Notes in excess of the invested amount of such Notes, all asprovided in this Indenture and any related Indenture Supplement.  All covenants and agreements made by theIssuer herein are for the benefit and security of the Noteholders and anySeries Enhancer.  The Issuer is enteringinto this Indenture, and the Indenture Trustee is accepting the trusts createdhereby, for good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged.

 

Simultaneously with the delivery of this Indenture theIssuer is entering into the Transfer and Servicing Agreement with CompuCreditCorporation, a Georgia corporation (the “**Servicer**”),CSG Funding, LLC, a Delaware limited liability company (the “**O/C Holder**”), and PACCT, LLC, aDelaware limited liability company (the “**Transferor**”),pursuant to which (a) the Transferor will convey to the Issuer all of itsright, title and interest in, to and under the Receivables and (b) theServicer will agree to service the Receivables and make collections thereon onbehalf of the Noteholders.

 

Under the Transfer and Servicing Agreement,Receivables arising in the Accounts from time to time will be conveyedthereunder to the Issuer.

 

GRANTING CLAUSES

 

The Issuer hereby Grants to the Indenture Trustee, forthe benefit of the Holders of the Notes and the holders of any other interestsin the Receivables as specified in the related Indenture Supplement, all of theIssuer’s right, title and interest, whether now owned or hereafter acquired,in, to and under all of the Issuer’s property, including, without limitation(a) the Receivables existing at the close of business on the Cut-Off Dateand thereafter created or acquired by the Trust from time to time and arisingin connection with the Accounts, (b) all Interchange and Recoveriesallocable to the Issuer as provided in the Transfer and Servicing Agreement andall monies due or to become due and all amounts received or receivable withrespect thereto, (c) all monies and other property credited to theCollection Account and the Series Accounts (including any subaccounts of suchaccount), and all interest, dividends, earnings, income and other distributionsfrom time to time received, receivable or otherwise distributed ordistributable thereto or in respect thereof (including any accrued discountrealized on liquidation of any investment purchased at a discount),(d) all rights, remedies, powers, 

 

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privileges and claims of the Issuer under or with respect to any SeriesEnhancement, the Trust Agreement, the Transfer and Servicing Agreement or theReceivables Purchase Agreement (whether arising pursuant to the terms of suchSeries Enhancement, the Trust Agreement, the Transfer and Servicing Agreementor the Receivables Purchase Agreement or otherwise available to the Issuer atlaw or in equity), including, without limitation, the rights of the Issuer toenforce such Series Enhancement, the Trust Agreement, the Transfer and ServicingAgreement or the Receivables Purchase Agreement, and to give or withhold anyand all consents, requests, notices, directions, approvals, extensions orwaivers under or with respect to such Series Enhancement, the Trust Agreement,the Transfer and Servicing Agreement or the Receivables Purchase Agreement tothe same extent as the Issuer could but for the assignment and securityinterest granted to the Indenture Trustee for the benefit of the Noteholdersand the holders of any other interests in the Receivables as specified in therelated Indenture Supplement, (e) all money, accounts, generalintangibles, chattel paper, instruments, documents, goods, investment property,deposit accounts, certificates of deposit, letters of credit, and advices of creditconsisting of, arising from, or related to the foregoing, (f) all otherproperty of the Issuer, and (g) all present and future claims, demands,causes and choses in action in respect of any or all of the foregoing and allpayments on or under and all proceeds of every kind and nature whatsoever inrespect of any or all of the foregoing, including all proceeds, products,rents, receipts or profits of the conversion, voluntary or involuntary, intocash or other property, all cash and non-cash proceeds, and other propertyconsisting of, arising from or relating to all or any part of any of theforegoing; in each case, excluding the Transferor Amount and all amountsdistributable to the Holders of any Certificates pursuant to the terms of anyTransaction Document (collectively, the “**Collateral**”).

 

LIMITED RECOURSE

 

The obligation of the Issuer to make payments ofprincipal of, interest on and other amounts with respect to, the Notes or anyother interests in the Receivables specified in the related Indenture Supplementis limited by recourse only to the Collateral.

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01.          Definitions.

 

Whenever used in this Indenture, the following wordsand phrases shall have the following meanings, and the definitions of suchterms are applicable to the singular as well as the plural forms of such termsand to the masculine as well as to the feminine and neuter genders of suchterms.

 

“Accounts Owner” shall have the meaningspecified in the Transfer and Servicing Agreement.

 

“Act” shall have the meaning specified insubsection 12.03(a).

 

“Administration Agreement” shall mean theAdministration Agreement, dated as of June 25, 2002, between the Issuer and theAdministrator, as the same may be amended, supplemented or otherwise modifiedfrom time to time.

 

“Administrator” shall mean CSG, LLC, or itspermitted successors and assigns, or any successor Administrator under theAdministration Agreement.

 

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“Adverse Effect” shall have the meaningspecified in the Transfer and Servicing Agreement.

 

“Agreement” shall mean this Master Indenture,as the same may be amended, supplemented or otherwise modified from time totime, including, with respect to any Series or Class, the related IndentureSupplement.

 

“Applicants” shall have the meaning specifiedin Section 2.09.

 

“Authorized Officer” shall mean:

 

(a)           with respect to the Issuer, anyofficer of the Owner Trustee who is authorized to act for the Owner Trustee inmatters relating to the Issuer and who is identified on the list of AuthorizedOfficers, containing the specimen signature of each such Person, delivered bythe Owner Trustee to the Indenture Trustee and the Note Administrator on therelevant Closing Date (as such list may be modified or supplemented from timeto time thereafter) and any Vice President or more senior officer of theAdministrator who is authorized to act for the Administrator in mattersrelating to the Issuer and to be acted upon by the Administrator pursuant tothe Administration Agreement and who is identified on the list of AuthorizedOfficers (containing the specimen signatures of such officers) delivered by theAdministrator to the Indenture Trustee and the Note Administrator on therelevant Closing Date (as such list may be modified or supplemented from timeto time thereafter);

 

(b)           with respect to the Transferor, anyofficer of the Transferor who is authorized to act for the Transferor inmatters relating to the Transferor and who is identified on the list ofAuthorized Officers, containing the specimen signature of each such Person,delivered by the Transferor to the Indenture Trustee and the Note Administratoron the relevant Closing Date (as such list may be modified or supplemented fromtime to time thereafter);

 

(c)           with respect to the Servicer, anyofficer of the Servicer who is authorized to act for the Servicer in mattersrelating to the Servicer and who is identified on the list of AuthorizedOfficers, containing the specimen signature of each such Person, delivered bythe Servicer to the Indenture Trustee and the Note Administrator on therelevant Closing Date (as such list may be modified or supplemented from timeto time thereafter);

 

(d)           with respect to the O/C Holder, anyofficer of the O/C Holder who is authorized to act for the O/C Holder inmatters related to the O/C Holder and who is identified on the list ofAuthorized Officers, containing the specimen signature of each such Person,delivered by the O/C Holder to the Indenture Trustee and the Note Administratoron the relevant Closing Date (as such list may be modified or supplemented fromtime to time thereafter); and

 

(e)           with respect to the NoteAdministrator, any officer of the Note Administrator who is authorized to actfor the Note Administrator in matters related to the Note Administrator and whois identified on the list of Authorized Officers, containing the specimensignature of each such Person, delivered by the Note Administrator to theIndenture Trustee on the relevant Closing Date (as such list may be modified orsupplemented from time to time thereafter).

 

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“Business Day” shall have the meaning specifiedin the Transfer and Servicing Agreement.

 

“Certificate Trust Agreements” shall mean thePass-Through Trust Agreement, Series 2002-1, dated as of June 25, 2002, amongCSGQ Trust, Presidio Trust, the Certificate Trustee and the CertificateAdministrator and each supplement thereto.

 

“Certificate Administrator” shall mean thecertificate administrator under the Certificate Trust Agreements.

 

“Certificate Trustee” shall mean the trusteeunder the Certificate Trust Agreements.

 

“Certificates” shall have the meaning specifiedin the Trust Agreement.

 

“Class” shall mean, with respect to any Series,any one of the classes of Notes or other interests in the Receivables of thatSeries, as specified in the related Indenture Supplement.

 

“Closing Date” shall mean, with respect to anySeries, the closing date specified in the related Indenture Supplement.

 

“Code” shall mean the Internal Revenue Code of1986, as amended.

 

“Collateral” shall have the meaning specifiedin the Granting Clause of this Indenture.

 

“Collection Account” shall have the meaningspecified in Section 8.03.

 

“Collections” shall have the meaning specifiedin the Transfer and Servicing Agreement.

 

“CompuCredit” shall mean CompuCreditCorporation, a Georgia corporation.

 

“Controlling Noteholders” shall mean theholders of at least 50% of the Outstanding Amount of the Class A Notes (as sodesignated in the related Indenture Supplement) or, if the Class A Notes havebeen paid in full, 50% of the Outstanding Amount of the Class B Notes (as sodesignated in the related Indenture Supplement).  The Certificate Trustee as Holder, if applicable, shall vote inaccordance with the provisions of the relevant Pass-Through Trust Agreement.

 

“Corporate Trust Office” means (i) theprincipal office of the Indenture Trustee at which at any particular time itscorporate trust business shall be administered, which office on the date of theexecution of this Indenture is located at 180 East Fifth Street, St. Paul,Minnesota 55101, Attention: Structured Finance/Project PACCT, or at such otheraddress as the Indenture Trustee may designate from time to time by notice tothe Noteholders, the Note Administrator, the Certificate Trustee, theCertificate Administrator and the Transferor, or the principal corporate trustoffice of any successor Indenture Trustee (the address of which the successorIndenture Trustee will notify the Noteholders, the Note Administrator, the O/CHolder, the Certificate Trustee, the Certificate Administrator and theTransferor); and (ii) the principal office of the Note Administrator at whichat any particular time its corporate trust business shall be administered,which office on the date of the execution of this Indenture is located at 111Wall Street, Zone 3, 

 

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14th Floor, New York, New York 10005, Attention: Structured FinanceGroup/PACCT, Series 2001-1, or at such other address as the Note Administratormay designate from time to time by notice to the Noteholders, the IndentureTrustee, the Certificate Trustee, the Certificate Administrator and theTransferor, or the principal corporate trust office of any successor NoteAdministrator (the address of which the successor Note Administrator willnotify the Noteholders, the Indenture Trustee, the O/C Holder, the CertificateTrustee, the Certificate Administrator and the Transferor); providedthat for the purposes of Section 3.02, the address of any such office shall bein the Borough of Manhattan of the City of New York.

 

“CSG, LLC” shall mean CSG, LLC, a Delawarelimited liability company, or any of its successors or assigns.

 

“Cut-Off Date” shall mean May 31, 2002.

 

“Date of Processing” shall have the meaningspecified in the Transfer and Servicing Agreement.

 

“Default” shall mean any occurrence that is, orwith notice or the lapse of time or both would become, an Event of Default.

 

“Defaulted Receivables” shall have the meaningspecified in the Transfer and Servicing Agreement.

 

“Definitive Notes” shall mean Notes indefinitive, fully registered form.

 

“Deposit Date” shall mean each day on which theServicer deposits Collections in the Collection Account.

 

“Determination Date” shall mean, unlessotherwise specified in the Indenture Supplement for a particular Series, thefourth Business Day preceding the Distribution Date.

 

“Distribution Date” shall mean, with respect toany Series, the date specified in the applicable Indenture Supplement.

 

“Dollars,” “$” or “U.S. $” shallmean United States dollars.

 

“DTC” shall mean The Depository Trust Companyand any successors thereto.

 

“Eligible Institution” shall mean a depositoryinstitution (which may include the Owner Trustee, the Certificate Trustee, theCertificate Administrator, the Note Administrator or the Indenture Trustee)organized under the laws of the United States or any one of the states thereof,or the District of Columbia (or any domestic branch of a foreign bank), andwhich depository institution at all times (a) has either (i) along-term unsecured debt rating of “Aa3” or better by Moody’s or (ii) acertificate of deposit rating of “P-1” by Moody’s, (b) has either(i) a long-term unsecured debt rating of “AA-” by Standard &Poor’s or (ii) a certificate of deposit rating of “A-1+” byStandard & Poor’s and (c) is a member of the FDIC.  Notwithstanding the previous sentence, anyinstitution the appointment of which satisfies the Rating Agency Condition shallbe considered an Eligible Institution. If so qualified, the Servicer may be considered an Eligible Institutionfor the purposes of this definition.

 

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“Eligible Investments” shall mean, as of anydate of determination, the following instruments, investment property, or otherproperty, other than securities issued by or obligations of CompuCredit and anyAccounts Owner, which evidence:

 

(a)           direct obligations of, or obligationsfully guaranteed as to timely payment of principal and interest by, the UnitedStates of America;

 

(b)           demand deposits, time deposits orcertificates of deposit (having original maturities of no more than 365 days)of depository institutions or trust companies incorporated under the laws ofthe United States of America or any state thereof, or the District of Columbia(or domestic branches of foreign banks) and subject to supervision andexamination by federal or state banking or depository institution authorities; providedthat at the time of the Trust’s investment or contractual commitment to investtherein, the short-term debt rating of such depository institution or trustcompany shall be in the highest rating category of Standard & Poor’s and ofMoody’s unless otherwise specified in the related Indenture Supplement;

 

(c)           commercial paper or other short-termobligations (having original or remaining maturities of no more than thirty(30) days) having, at the time of the Trust’s investment or contractualcommitment to invest therein, a rating in the highest rating category ofStandard & Poor’s and of Moody’s unless otherwise specified in the relatedIndenture Supplement;

 

(d)           demand deposits, time deposits andcertificates of deposit which (i) are scheduled to mature on a date occurringno later than the immediately succeeding Distribution Date, (ii) are fullyinsured by the FDIC and (iii) have, at the time of the Trust’s investmenttherein, a rating in the highest rating category of Standard & Poor’s andof Moody’s unless otherwise specified in the related Indenture Supplement;

 

(e)           bankers’ acceptances (having originalmaturities of no more than 365 days) issued by any depository institution ortrust company referred to in clause (b) above;

 

(f)            money market funds having, at the timeof the Trust’s investment therein, a rating in the highest rating category ofStandard & Poor’s and of Moody’s unless otherwise specified in the relatedIndenture Supplement (including funds for which the Indenture Trustee or theCertificate Trustee or any of their respective Affiliates is investment manageror advisor);

 

(g)           time deposits (other than thosereferred to in clause (b) or (d) above), with a Person whose commercial paperhas a credit rating satisfactory to Standard & Poor’s and Moody’s unlessotherwise specified in the related Indenture Supplement and which are scheduledto mature on a date occurring no later than the immediately succeedingDistribution Date; or

 

(h)           any other investment of a type orrating that satisfies the Rating Agency Condition.

 

“Enhancement Agreement” shall mean anyagreement, instrument or document governing the terms of any Series Enhancementor pursuant to which any Series Enhancement is issued or outstanding.

 

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“Euroclear Operator” shall mean Euroclear BankS.A./N.V., as operator of the Euroclear System and any successor thereto.

 

“Event of Default” shall have the meaningspecified in Section 5.02.

 

“Exchange Act” shall mean the SecuritiesExchange Act of 1934, as amended.

 

“FDIC” shall mean the Federal Deposit InsuranceCorporation or any successor thereto.

 

“Finance Charge Receivables” shall have themeaning specified in the Transfer and Servicing Agreement.

 

“Final Maturity Date” shall mean, with respectto any Series, the final maturity date for such Series specified in the relatedIndenture Supplement.

 

“GAAP” means generally accepted accountingprinciples in the United States of America in effect from time to time.

 

“Grant” means to mortgage, pledge, bargain, warrant,alienate, remise, release, convey, assign, transfer, create, and grant a lienupon and a security interest in and right of set-off against, deposit, set overand confirm pursuant to this Indenture. A Grant of the Collateral or of any other agreement or instrument shallinclude all rights, powers and options (but none of the obligations) of theGranting party thereunder, including the immediate and continuing right toclaim for, collect, receive and give receipt for principal and interestpayments in respect of the Collateral and all other monies payable thereunder,to give and receive notices and other communications, to make waivers or otheragreements, to exercise all rights and options, to bring Proceedings in thename of the Granting party or otherwise and generally to do and receiveanything that the Granting party is or may be entitled to do or receivethereunder or with respect thereto.

 

“Indenture” shall mean this Master Indenture,dated as of June 25, 2002, among the Issuer, the Note Administrator and theIndenture Trustee, as the same may be amended, supplemented or otherwisemodified from time to time.

 

“Indenture Supplement” shall mean, with respectto any Series, a supplement to the Indenture, executed and delivered inconnection with the original issuance of the Notes of such Series pursuant toSection 10.01, and an amendment to this Indenture executed pursuant to Sections10.01 or 10.02, and, in either case, including all amendments thereof andsupplements thereto.

 

“Indenture Trustee” shall mean U.S. BankNational Association, a national banking association, in its capacity asindenture trustee under the Agreement, its successors in interest and anysuccessor indenture trustee under the Agreement.

 

“Independent” shall mean, when used with respectto any specified Person, that the Person (a) is in fact independent of theIssuer, any other obligor upon the Notes, the Transferor and any Affiliate ofany of the foregoing Persons, (b) does not have any direct financial interestor any material indirect financial interest in the Issuer, any such otherobligor, the Transferor or any Affiliate of any of the foregoing Persons and(c) is not connected with the Issuer, any such other obligor, the Transferor orany Affiliate of any of the foregoing Persons as 

 

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an officer, employee, promoter, underwriter, trustee, partner, directoror Person performing similar functions.

 

“Indirect Participant” shall mean other Personssuch as securities brokers and dealers, banks and trust companies that clear ormaintain a custodial relationship with a participant of DTC, either directly orindirectly.

 

“Insolvency Event” shall have the meaningspecified in subsection 5.01(a).

 

“Invested Amount” shall mean, with respect toany Series and for any date, an amount equal to the “Invested Amount” specifiedin the related Indenture Supplement.

 

“Investment Company Act” shall mean theInvestment Company Act of 1940, as amended.

 

“Issuer” shall mean the Trust.

 

“Issuer Order” and “Issuer Request”shall mean a written order or request signed in the name of the Issuer by anyone of its Authorized Officers and delivered to the Indenture Trustee and/orthe Note Administrator, as the case may be.

 

“Lien” shall have the meaning specified in theTransfer and Servicing Agreement.

 

“Majority Noteholders” shall mean, with respectto any Series, the Holders of more than 50% of the Outstanding Amount of theNotes of such Series.  The CertificateTrustee as Holder, if applicable, shall vote in accordance with the provisionsof the relevant Pass-Through Trust Agreement.

 

“Monthly Period” shall mean, with respect toeach Distribution Date, unless otherwise provided in an Indenture Supplement,the period from and including the first day of the preceding calendar month toand including the last day of such calendar month; provided, however,that the initial Monthly Period with respect to any Series will commence on theCut-Off Date with respect to such Series, unless otherwise specified in therelated Indenture Supplement.

 

“Moody’s” shall mean Moody’s Investors Service,Inc. and any successor thereto.

 

“New Issuance” shall have the meaning specifiedin subsection 2.11(a).

 

“Note Administrator” shall mean Citibank, N.A.,a national association in its capacity as note administrator under thisIndenture, its successors in interest and any successor note administratorunder this Indenture.

 

“Note Interest Rate” shall mean, as of anyparticular date of determination and with respect to any Series or Class, theinterest rate as of such date specified therefor in the related IndentureSupplement.

 

“Note Register” shall have the meaningspecified in Section 2.05.

 

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“Noteholder” or “Holder” shall mean thePerson in whose name a Note is registered on the Note Register or such otherPerson deemed to be a “Noteholder” or “Holder” in any related IndentureSupplement.

 

“Notes” shall mean Notes of all Series issuedby the Trust pursuant to the Indenture and the applicable IndentureSupplements.

 

“Notice of Default” shall have the meaningspecified in Section 5.02(c).

 

“O/C Certificate” shall mean the certificateexecuted by the Trust and authenticated by or on behalf of the IndentureTrustee, which certificate evidences an undivided interest in the O/C InvestedAmount, as may be specified in the related Indenture Supplement.

 

“O/C Holder” shall mean CSG Funding, LLC, aDelaware limited liability company, and any permitted successors and assigns.

 

“Officer’s Certificate” shall mean, unlessotherwise specified in this Indenture, a certificate delivered to the IndentureTrustee and the Note Administrator signed by any Authorized Officer of theIssuer, Transferor, Servicer or O/C Holder, as applicable, under the circumstancesdescribed in, and otherwise complying with, the applicable requirements ofSection 12.01, except to the extent executed by the Owner Trustee on behalf ofthe Issuer.

 

“Opinion of Counsel” shall mean a writtenopinion of counsel, who may be counsel for, or an employee of, the Personproviding the opinion; provided that a Tax Opinion shall be an opinionof nationally recognized tax counsel.

 

“Outstanding” shall mean, as of the date ofdetermination, all Notes theretofore authenticated and delivered under thisIndenture except:

 

(i)            Notes theretofore canceled by theTransfer Agent and Registrar or delivered to the Transfer Agent and Registrarfor cancellation;

 

(ii)           Notes or portions thereof the paymentfor which money in the necessary amount has been theretofore deposited with theIndenture Trustee or any Paying Agent in trust for the Holders of such Notes (provided,however, that if such Notes are to be redeemed, notice of suchredemption has been duly given pursuant to this Indenture or provision therefor,satisfactory to the Note Administrator, has been made); and

 

(iii)          Notes in exchange for or in lieu ofother Notes which have been authenticated and delivered pursuant to thisIndenture unless proof satisfactory to the Note Administrator is presented thatany such Notes are held by a “protected purchaser” (as defined in the New YorkUCC);

 

; provided that in determining whether the Holders of therequisite Outstanding Amount of the Notes have given any request, demand,authorization, direction, notice, consent or waiver hereunder or under thisIndenture or any Indenture Supplement, Notes owned by the Issuer, theTransferor or any Affiliate or agent thereof shall be disregarded and deemednot to be Outstanding, except that, in determining whether the IndentureTrustee shall be protected in relying upon any such request, demand,authorization, direction, notice, consent or waiver, only Notes that aResponsible Officer of the Indenture Trustee actually knows to be so ownedshall be so disregarded.  Notes so ownedthat have been pledged in good faith may be regarded as 

 

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Outstanding if the pledgee establishes to the satisfaction of theIndenture Trustee the pledgee’s right so to act with respect to such Notes andthat the pledgee is not the Issuer, the Transferor or any Affiliate or agentthereof.  In making any suchdetermination, the Indenture Trustee may rely on the representations of thepledgee and shall not be required to undertake any independent investigation.

 

“Outstanding Amount” means the aggregateprincipal amount of all Notes Outstanding at the date of determination and,with respect to the Notes of a particular Series, the aggregate principalamount of all Notes of such Series which are Outstanding at the date ofdetermination.

 

“Owner Trustee” shall mean Wilmington TrustCompany, not in its individual capacity, but solely as owner trustee under theTrust Agreement, its successors in interest and any successor owner trusteeunder the Trust Agreement.

 

“Paired Series” shall mean (i) each Serieswhich has been paired with another Series (which Series may be prefunded orpartially prefunded), such that the reduction of the Invested Amount of suchSeries results in the increase of the Invested Amount of such other Series, asdescribed in the related Indenture Supplements, and (ii) such otherSeries.

 

“Pass-Through Trust Agreement” shall mean thePass-Through Trust Agreement dated as of June 25, 2002 among CSGQ Trust,Presidio Trust, U.S. Bank National Association, as certificate trustee, andCitibank, N.A., as certificate administrator, as amended and supplemented fromtime to time.

 

“Paying Agent” shall mean any paying agentappointed pursuant to Section 2.08 and shall initially be the NoteAdministrator; provided that if the Indenture Supplement for a Series soprovides, a separate or additional Paying Agent may be appointed with respectto such Series.

 

“Permitted Assignee” shall mean any Person who,if it were to purchase Receivables (or interests therein) in connection with asale thereof pursuant to Sections 5.05(a) and 5.16, would not cause the Trustto be taxable as a publicly traded partnership for federal income tax purposes.

 

“Person” shall have the meaning specified inthe Transfer and Servicing Agreement.

 

“Principal Receivables” shall have the meaningspecified in the Transfer and Servicing Agreement.

 

“Principal Sharing Series” shall mean a Seriesthat, pursuant to the Indenture Supplement therefor, is entitled to receiveShared Principal Collections.

 

“Principal Shortfall” shall have the meaningspecified in Section 8.05.

 

“Principal Terms” shall mean, with respect toany Series, (a) the name or designation; (b) the initial principalamount (or method for calculating such amount) and the Invested Amount;(c) the Note Interest Rate for each Class of Notes of such Series (ormethod for the determination thereof); (d) the payment date or dates andthe date or dates from which interest shall accrue; (e) the method forallocating Collections to Noteholders; (f) the designation of any 

 

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Series Accounts and the terms governing the operation of any suchSeries Accounts; (g) the Servicing Fee; (h) the issuer and terms ofany form of Series Enhancement with respect thereto; (i) the terms onwhich the Notes of such Series may be exchanged for Notes of another Series,repurchased by the Transferor or remarketed to other investors; (j) theFinal Maturity Date; (k) the number of Classes of Notes of such Seriesand, if more than one Class, the rights and priorities of each such Class;(l) the extent to which the Notes of such Series will be issuable intemporary or permanent global form (and, in such case, the depositary for suchglobal note or notes, the terms and conditions, if any, upon which such globalnote may be exchanged, in whole or in part, for Definitive Notes, and themanner in which any interest payable on a temporary or global note will bepaid); (m) whether the Notes of such Series may be issued in bearer formand any limitations imposed thereon; (n) the priority of such Series withrespect to any other Series; (o) whether such Series will be part of aGroup; (p) whether such Series will be a Principal Sharing Series;(q) the Distribution Date; (r) whether such Series will or may be aPaired Series and the Series with which it will be paired, if applicable; and(s) any other terms of such Series.

 

“Proceeding” shall mean any suit in equity,action at law or other judicial or administrative proceeding.

 

“Qualified Account” shall mean either(a) a segregated account with an Eligible Institution or (b) asegregated trust account with the corporate trust department of a depositoryinstitution organized under the laws of the United States or any one of thestates thereof or the District of Columbia (or any domestic branch of a foreignbank), and acting as a trustee for funds deposited in such account, so long asany of the unsecured, unguaranteed senior debt securities of such depositoryinstitution shall have a credit rating from each Rating Agency in one of itsgeneric credit rating categories that signifies investment grade.

 

“Rating Agency” shall mean, with respect to anyoutstanding Series or Class, each rating agency, as specified in the applicableIndenture Supplement, selected by the Issuer to rate the Notes of such Seriesor Class.

 

“Rating Agency Condition” shall mean, withrespect to any action, that each Rating Agency shall have notified the Issuer,the Note Administrator and the Indenture Trustee in writing that such actionwill not result in a reduction or withdrawal of the then existing rating of anyoutstanding Series or Class with respect to which it is a Rating Agency or,with respect to any outstanding Series or Class not rated by any Rating Agency,the written consent of the Noteholders of such Series or Class or such otherPersons as specified in the Indenture Supplement for such Series.

 

“Receivables” shall have the meaning specifiedin the Transfer and Servicing Agreement.

 

“Record Date” shall mean, with respect to anyDistribution Date, the Business Day immediately preceding the relatedDistribution Date unless otherwise specified for a Series in the relatedIndenture Supplement.

 

“Redemption Date” shall mean, with respect toany Series, the date or dates, if any, specified in the related IndentureSupplement.

 

“Redemption Event” shall mean, with respect toany Series, a Trust Redemption Event or a Series Redemption Event.

 

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“Responsible Officer” shall mean (a) withrespect to the Indenture Trustee, any officer within the Corporate Trust Officehaving direct responsibility for the administration of this Agreement,including any Vice President, Managing Director, Assistant Vice President, Secretary,Assistant Secretary or any other officer of the Indenture Trustee customarilyperforming functions similar to those performed by any of the above designatedofficers and also, with respect to a particular matter, any other officer towhom such matter is referred because of such officer’s knowledge andfamiliarity with the particular subject, (b) with respect to the NoteAdministrator, any officer within the Corporate Trust Office having directresponsibility for the administration of this Agreement, including any VicePresident, Managing Director, Assistant Vice President, Secretary, AssistantSecretary or any other officer of the Note Administrator customarily performingfunctions similar to those performed by any of the above designated officers andalso, with respect to a particular matter, any other officer to whom suchmatter is referred because of such officer’s knowledge and familiarity with theparticular subject and (c) with respect to the Paying Agent, any officer withinthe corporate trust office having direct responsibility for the administrationof this Agreement, including any Vice President, Managing Director, AssistantVice President, Secretary, Assistant Secretary or any other officer of thePaying Agent customarily performing functions similar to those performed by anyof the above designated officers and also, with respect to a particular matter,any other officer to whom such matter is referred because of such officer’sknowledge and familiarity with the particular subject.

 

“Securities Act” shall mean the Securities Actof 1933, as amended.

 

“Series” shall mean any series of Notes orother interests issued pursuant to this Indenture and the related IndentureSupplement.

 

“Series Account” shall mean any deposit, trust,securities escrow or similar account maintained for the benefit of theNoteholders of any Series or Class, as specified in any Indenture Supplement.

 

“Series Enhancement” shall mean the rights andbenefits provided to the Trust or the Noteholders of any Series or Classpursuant to any letter of credit, surety bond, cash collateral account,collateral invested amount, spread account, reserve account, guaranteed rateagreement, maturity liquidity facility, tax protection agreement, interest rateswap agreement, interest rate cap agreement or other similar arrangement.  The subordination of any Series or Class toanother Series or Class shall be deemed to be a Series Enhancement.

 

“Series Enhancer” shall mean the Person orPersons providing any Series Enhancement, other than (except to the extentotherwise provided with respect to any Series in the Indenture Supplement forsuch Series) the Noteholders of any Series or Class which is subordinated toanother Series or Class.

 

“Series Issuance Date” shall mean, with respectto any Series, the date on which the Notes of such Series are to be originallyissued in accordance with Section 2.11 and the related Indenture Supplement.

 

“Series Redemption Event” shall have, withrespect to any Series, the meaning specified pursuant to the related IndentureSupplement.

 

“Servicer” shall have the meaning specified inthe Transfer and Servicing Agreement.

 

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“Servicer Default” shall have the meaningspecified in the Transfer and Servicing Agreement.

 

“Shared Principal Collections” shall have themeaning specified in Section 8.05.

 

“Standard & Poor’s” shall mean Standard& Poor’s Ratings Services, a division The McGraw-Hill Companies Inc., andany successors thereto.

 

“Tax Opinion” shall mean, with respect to anyaction, an Opinion of Counsel to the effect that, for federal income taxpurposes, (a) such action will not adversely affect the taxcharacterization as debt of the Notes of any outstanding Series or Class thatwere characterized as debt at the time of their issuance, (b) such actionwill not cause the Trust to be deemed to be an association (or publicly tradedpartnership) taxable as a corporation and (c) such action will not causeor constitute an event in which gain or loss would be recognized by anyNoteholder.

 

“Transaction Documents” shall mean, withrespect to any Series of Notes, the Certificate Trust Agreements, the TrustAgreement, the Receivables Purchase Agreement, the Transfer and ServicingAgreement, this Indenture, the related Indenture Supplement, the AdministrationAgreement and such other documents and certificates delivered in connectiontherewith.

 

“Transfer Agent and Registrar” shall have themeaning specified in Section 2.05.

 

“Transfer and Servicing Agreement” shall meanthe Transfer and Servicing Agreement, dated as of June 25, 2002, among theTransferor, the O/C Holder, the Servicer and the Issuer, as the same may beamended, supplemented or otherwise modified from time to time.

 

“Transfer Date” shall mean the Business Dayimmediately preceding each Distribution Date.

 

“Transferor” shall have the meaning specifiedin the Transfer and Servicing Agreement.

 

“Transferor Amount” shall mean, on any date ofdetermination, an amount equal to (a) the aggregate amount of Receivablestransferred by the Transferor to the Trust since the Closing Date, *minus*(b) the aggregate amount of Collections that have been paid to the Transferorsince the Closing Date to purchase new Receivables, *minus* (c) the net amount ofany advances by CSG, LLC to the Transferor under any variable funding notes ofthe Issuer, *minus*(d) Collections of Principal Receivables that have not been allocated to theInvested Amount of any series on all prior Distribution Dates that have beendistributed to the Transferor, *minus* (e) the amount of DefaultedReceivables that have not been allocated to the Invested Amount of any serieson all prior Distribution Dates.

 

“Trust” shall mean the CSGQ Trust.

 

“Trust Agreement” shall mean the TrustAgreement relating to the Trust, dated as of June 24, 2002, among PACCT, LLC,the O/C Holder and the Owner Trustee, as the same may be amended, supplementedor otherwise modified from time to time.

 

“Trust Redemption Event” shall have the meaningspecified in Section 5.01.

 

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“UCC” shall have the meaning specified in theTransfer and Servicing Agreement.

 

Section 1.02.          OtherDefinitional Provisions.

 

(a)           Withrespect to any Series, all terms used herein and not otherwise defined hereinshall have meanings ascribed to them in the Trust Agreement, the Transfer andServicing Agreement or the related Indenture Supplement, as applicable.

 

(b)           Allterms defined in this Indenture shall have the defined meanings when used inany certificate or other document made or delivered pursuant hereto unlessotherwise defined therein.

 

(c)           Asused in this Indenture and in any certificate or other document made ordelivered pursuant hereto or thereto, accounting terms not defined in thisIndenture or in any such certificate or other document, and accounting termspartly defined in this Indenture or in any such certificate or other documentto the extent not defined, shall have the respective meanings given to themunder GAAP.  To the extent that the definitionsof accounting terms in this Indenture or in any such certificate or otherdocument are inconsistent with the meanings of such terms under GAAP, thedefinitions contained in this Indenture or in any such certificate or otherdocument shall control.

 

(d)           Anyreference to a Rating Agency shall apply to a specific rating agency only ifsuch rating agency is then rating any outstanding Series.

 

(e)           Unlessotherwise specified, references to any amount as on deposit or outstanding onany particular date shall mean such amount at the close of business on suchday.

 

(f)            Thewords “hereof,” “herein,” “hereunder” and words of similar import when used inthis Indenture shall refer to this Indenture as a whole and not to anyparticular provision of this Indenture; references to any subsection, Section,Schedule or Exhibit are references to subsections, Sections, Schedules andExhibits in or to this Indenture unless otherwise specified; and the term“including” means “including without limitation.”

 

ARTICLE II

 

THE NOTES

 

Section 2.01.          FormGenerally.

 

Any Series or Class of Notes, together with theIndenture Trustee’s certificate of authentication related thereto, may beissued in definitive form and shall be in substantially the form of an exhibitto the related Indenture Supplement with such appropriate insertions,omissions, substitutions and other variations as are required or permitted bythis Indenture or such Indenture Supplement, and may have such letters, numbersor other marks of identification and such legends or endorsements placedthereon, as may, consistently herewith, be determined by the officers executingsuch Notes, as evidenced by their execution of such Notes.  Any portion of the text of any Note may beset forth on the reverse thereof, with an appropriate reference thereto on theface of the Note.  The terms of anyNotes set forth in an exhibit to the related Indenture Supplement are part ofthe terms of this Indenture, as applicable.

 

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The Definitive Notes shall be typewritten, printed,lithographed or engraved or produced by any combination of these methods, allas determined by the officers executing such Notes, as evidenced by theirexecution of such Notes.

 

Each Note will be dated the Closing Date of therelated Series and each Definitive Note will be dated as of the date of itsauthentication.

 

Section 2.02.          Denominations.

 

Except as otherwise specified in the related IndentureSupplement and the Notes, each Class of Notes of each Series shall be issued indefinitive form in minimum amounts of $100,000 and in integral multiples of $1in excess thereof, and shall be issued upon initial issuance as one or moreNotes in an aggregate original principal amount equal to the applicableInvested Amount for such Class or Series.

 

Section 2.03.          Execution,Authentication and Delivery.

 

Each Note shall be executed by manual or facsimilesignature on behalf of the Issuer by an Authorized Officer.

 

Notes bearing the manual or facsimile signature of anindividual who was, at the time when such signature was affixed, authorized tosign on behalf of the Issuer shall not be rendered invalid, notwithstanding thefact that such individual ceased to be so authorized prior to theauthentication and delivery of such Notes or does not hold such office at thedate of issuance of such Notes.

 

At any time and from time to time after the executionand delivery of this Indenture, the Issuer may deliver Notes executed by theIssuer to the Indenture Trustee for authentication and delivery, and theIndenture Trustee shall authenticate and deliver such Notes as provided in thisIndenture or the related Indenture Supplement and not otherwise.

 

No Note shall be entitled to any benefit under thisIndenture or the applicable Indenture Supplement or be valid or obligatory forany purpose, unless there appears on such Note a certificate of authenticationsubstantially in the form provided for herein or in the related IndentureSupplement executed by or on behalf of the Indenture Trustee by the manualsignature of a duly authorized signatory, and such certificate upon any Noteshall be conclusive evidence, and the only evidence, that such Note has beenduly authenticated and delivered hereunder.

 

Section 2.04.          AuthenticatingAgent.

 

(a)           TheIndenture Trustee may appoint one or more authenticating agents with respect tothe Notes which shall be authorized to act on behalf of the Indenture Trusteein authenticating the Notes in connection with the issuance, delivery,registration of transfer, exchange or repayment of the Notes.  The Indenture Trustee shall be the initialauthenticating agent.  Wheneverreference is made in this Indenture to the authentication of Notes by theIndenture Trustee or the Indenture Trustee’s certificate of authentication,such reference shall be deemed to include authentication on behalf of theIndenture Trustee by an authenticating agent and a certificate ofauthentication executed on behalf of the Indenture Trustee by an authenticatingagent.  Each authenticating agent mustbe acceptable to the Issuer.

 

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(b)           Anyinstitution succeeding to the corporate agency business of an authenticatingagent shall continue to be an authenticating agent without the execution or filingof any power or any further act on the part of the Indenture Trustee or suchauthenticating agent.

 

(c)           Anauthenticating agent may at any time resign by giving written notice ofresignation to the Indenture Trustee, the Note Administrator and the Issuer.  The Indenture Trustee may at any timeterminate the agency of an authenticating agent by giving notice of terminationto such authenticating agent, to the Note Administrator and to the Issuer.  Upon receiving such a notice of resignationor upon such a termination, or in case at any time an authenticating agentshall cease to be acceptable to the Indenture Trustee, the Note Administratoror the Issuer, the Indenture Trustee may promptly appoint a successorauthenticating agent.  Any successorauthenticating agent upon acceptance of its appointment hereunder shall becomevested with all the rights, powers and duties of its predecessor hereunder,with like effect as if originally named as an authenticating agent.  No successor authenticating agent shall beappointed unless acceptable to the Issuer.

 

(d)           TheIssuer agrees to pay to each authenticating agent from time to time reasonablecompensation for its services under this Section 2.04.

 

(e)           Pursuantto an appointment made under this Section 2.04, the Notes may have endorsedthereon, in lieu of or in addition to the Indenture Trustee’s certificate ofauthentication, an alternative certificate of authentication in substantiallythe following form:

 

“This is one of the Notes described in thewithin-mentioned Agreement.

 
|   |                       |
|--------|----------------------------|
|   |                       |
|   |                       |
|   | as Authenticating Agent    |
|   | for the Indenture  Trustee |
|   |                       |
|   | By:                        |   |
|   | Authorized Signatory” |

 

(g)           Theprovisions of Sections 6.01, 6.03, 6.04, 6.05, 6.07 and 6.09 shall beapplicable to any authenticating agent.

 

Section 2.05.          Registrationof and Limitations on Transfer and Exchange  of Notes.

 

(a)           TheIssuer shall cause to be kept a register (the “**Note Register**”) in which the entity acting as transferagent and registrar (the “**Transfer Agentand Registrar**”) shall provide for the registration of Notes andthe registration of transfers of Notes. The Note Administrator initially shall be the Transfer Agent andRegistrar for the purpose of registering Notes and transfers of Notes as hereinprovided.  Upon any resignation of anyTransfer Agent and Registrar, the Indenture Trustee shall act, or the IndentureTrustee shall, with the consent of the Issuer, promptly appoint another bank ortrust company, having an office or agency located in the City of New York andwhich agrees to act in accordance with the provisions of this Indentureapplicable to it, to act, as successor Transfer Agent and Registrar; provided,however, that no resignation shall be effective and the Transfer Agentand Registrar shall continue to perform its 

 

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duties as the Note Registrar until the Indenture Trustee has assumedsuch duties or until a successor Transfer Agent and Registrar has beenappointed.

 

(b)           TheNote Registrar shall maintain in the Borough of Manhattan, the City of New Yorkan office or offices or agency or agencies where Notes may be surrendered forregistration of transfer or exchange. The Note Registrar initially designates its corporate trust officelocated at 111 Wall Street, Zone 3, 14th Floor, New York, New York10005, Attention:  Structured FinanceGroup/PACCT, Series 2002-1, telephone (212) 657-2183 for such purposes.  The Note Registrar shall give prompt noticeto the Indenture Trustee, the Certificate Trustee, the Note Administrator, theCertificate Administrator, the Transferor, the Issuer, the Servicer and theNoteholders of any change in the location of such office or agency.

 

(c)           Ifa Person other than the Note Administrator is appointed by the Issuer asTransfer Agent and Registrar, the Issuer will give the Note Administrator andthe Indenture Trustee prompt written notice of the appointment of a TransferAgent and Registrar and of the location, and any change in the location, of theTransfer Agent and Registrar and Note Register.  The Note Administrator and the Indenture Trustee shall have theright to inspect the Note Register at all reasonable times and to obtain copiesthereof, and the Note Administrator and the Indenture Trustee shall have theright to rely upon a certificate executed on behalf of the Transfer Agent andRegistrar by an officer thereof as to the names and addresses of theNoteholders and the principal amounts and numbers of such Notes.

 

(d)           Uponsurrender for registration of transfer of any Note at the office or agency of theTransfer Agent and Registrar, to be maintained as provided in Section 3.02, ifthe requirements of Section 8-401 of the UCC are met, the Issuer shall execute,and upon receipt of such surrendered Note the Indenture Trustee or anauthenticating agent on its behalf shall authenticate and the Transfer Agentand Registrar shall deliver to the Noteholder, in the name of the designatedtransferee or transferees, one or more new Notes (of the same Series and Class)in any authorized denominations of like aggregate principal amount.

 

(e)           Atthe option of a Noteholder, Notes may be exchanged for other Notes (of the sameSeries and Class) in any authorized denominations and of like aggregateprincipal amount, upon surrender of such Notes to be exchanged at the office oragency of the Transfer Agent and Registrar. Whenever any Notes are so surrendered for exchange, if the requirementsof Section 8-401 of the UCC are met, the Issuer shall execute, and upon receiptof such surrendered Note the Indenture Trustee shall authenticate and deliverto the Noteholder, the Notes which the Noteholder making the exchange isentitled to receive.

 

(f)            AllNotes issued upon any registration of transfer or exchange of Notes shallevidence the same obligations, evidence the same debt, and be entitled to thesame rights and privileges under this Indenture, as the Notes surrendered uponsuch registration of transfer or exchange.

 

(g)           EveryNote presented or surrendered for registration of transfer or exchange shall beduly endorsed by, or be accompanied by a written instrument of transfer in aform satisfactory to the Transfer Agent and Registrar duly executed by, theNoteholder thereof or its attorney-in-fact duly authorized in writing, and bysuch other documents as the Transfer Agent and Registrar may reasonablyrequire.

 

(h)           Theregistration of transfer of any Note shall be subject to the additionalrequirements, if any, set forth in the related Indenture Supplement.

 

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(i)            Noservice charge shall be made for any registration of transfer or exchange ofNotes, but the Issuer, the Indenture Trustee, the Note Administrator andTransfer Agent and Registrar may require payment of a sum sufficient to coverany tax or other governmental charge that may be imposed in connection with anyregistration of transfer or exchange of such Notes.

 

(j)            AllNotes surrendered for registration of transfer and exchange shall be deliveredto the Transfer Agent and Registrar and canceled by it for subsequent destructionwithout liability on the part of either.

 

(k)           Unlessotherwise set forth in an Indenture Supplement, the preceding provisions ofthis Section 2.05 notwithstanding, the Issuer shall not be required to make,and the Transfer Agent and Registrar need not register, transfers or exchangesof Notes for a period of twenty (20) days preceding the due date for anypayment with respect to the Note.

 

Section 2.06.          Mutilated,Destroyed, Lost or Stolen Notes.

 

If (a) any mutilated Note is surrendered to the TransferAgent and Registrar, or the Transfer Agent and Registrar receives evidence toits reasonable satisfaction of the destruction, loss or theft of any Note, and(b) in case of destruction, loss, or theft there is delivered to the IndentureTrustee, the Note Administrator or the Transfer Agent and Registrar suchsecurity or indemnity as it may require to hold the Issuer, the Noteholders,the Transfer Agent and Registrar, the Note Administrator and the IndentureTrustee harmless, then, in the absence of notice to the Issuer, the TransferAgent and Registrar, the Note Administrator or the Indenture Trustee that suchNote has been acquired by a “protected purchaser” (as defined in the New YorkUCC), the Issuer shall execute, and the Indenture Trustee or an authenticatingagent on its behalf shall authenticate and the Transfer Agent and Registrarshall deliver, in exchange for or in lieu of any such mutilated, destroyed,lost or stolen Note, a replacement Note of like class, tenor (including thesame date of issuance) and principal amount, bearing a number notcontemporaneously outstanding; provided, however, that if anysuch mutilated, destroyed, lost or stolen Note shall have become or withinseven (7) days shall be due and payable, or shall have been selected or calledfor redemption, instead of issuing a replacement Note, the Issuer may pay suchNote without surrender thereof, except that any mutilated Note shall besurrendered.  If, after the delivery ofsuch replacement Note or payment of a destroyed, lost or stolen Note pursuantto the proviso to the preceding sentence, a “protected purchaser” (as definedin the New York UCC) of the original Note in lieu of which such replacementNote was issued presents for payment such original Note, the Issuer, the IndentureTrustee and the Note Administrator shall be entitled to recover suchreplacement Note (or such payment) from the Person to whom it was delivered orany Person taking such replacement Note from such Person to whom suchreplacement Note was delivered or any assignee of such Person, except a“protected purchaser” (as defined in the New York UCC), and shall be entitledto recover upon the security or indemnity provided therefor to the extent ofany loss, damage, cost or expense incurred by the Issuer, the Indenture Trusteeor the Note Administrator in connection therewith.

 

Upon the issuance of any replacement Note under thisSection 2.06, the Issuer may require the payment by the Holder of such Note ofa sum sufficient to cover any tax or other governmental charge that may beimposed in relation thereto and any other reasonable expenses (including thefees and expenses of the Note Administrator, the Indenture Trustee or theTransfer Agent and Registrar) connected therewith.

 

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Every replacement Note issued pursuant to this Section2.06 in replacement of any mutilated, destroyed, lost or stolen Note shallconstitute complete and indefeasible evidence of debt of the Trust, as iforiginally issued, whether or not the mutilated, destroyed, lost or stolen Noteshall be found at any time, and shall be entitled to all the benefits of thisIndenture equally and proportionately with any and all other Notes duly issuedhereunder.

 

The provisions of this Section 2.06 are exclusive andshall preclude (to the extent lawful) all other rights and remedies withrespect to the replacement or payment of mutilated, destroyed, lost or stolenNotes.

 

Section 2.07.          PersonsDeemed Owners.

 

Prior to due presentment for registration of transferof any Note, the Issuer, the Indenture Trustee, the Note Administrator, theTransfer Agent and Registrar and any agent of the Transferor, the Issuer, theIndenture Trustee, the Note Administrator or the Transfer Agent and Registrarshall treat the Person in whose name any Note is registered as the owner ofsuch Note for the purpose of receiving distributions pursuant to the terms ofthe applicable Indenture Supplement and for all other purposes whatsoever,whether or not such Note is overdue, and neither the Issuer, the Transferor,the Indenture Trustee, the Note Administrator, the Transfer Agent and Registrarnor any agent of the Issuer, the Transferor, the Indenture Trustee, the NoteAdministrator or the Transfer Agent and Registrar shall be affected by anynotice to the contrary.

 

Section 2.08.          Appointmentof Paying Agent.

 

(a)           TheIssuer reserves the right at any time to vary or terminate the appointment of aPaying Agent for the Notes, and to appoint additional or other Paying Agents,provided that it will at all times maintain the Note Administrator as PayingAgent.

 

Notice of all changes in the identity or specifiedoffice of a Paying Agent will be delivered promptly to the Noteholders by theNote Administrator.

 

(b)           TheNote Administrator shall cause the Paying Agent (other than itself) to executeand deliver to the Note Administrator and the Indenture Trustee an instrumentin which such Paying Agent shall agree with the Note Administrator and theIndenture Trustee that such Paying Agent will hold all sums, if any, held by itfor payment to the Noteholders in trust for the benefit of the Noteholdersentitled thereto until such sums shall be paid to such Noteholders and shallagree, and if the Note Administrator is the Paying Agent it hereby agrees, thatit shall comply with all requirements of the Code regarding the withholding bythe Note Administrator of payments in respect of federal income taxes due fromthe Beneficial Owners.

 

Section 2.09.          Accessto List of Noteholders’ Names and Addresses.

 

(a)           TheIssuer will furnish or cause to be furnished to the Indenture Trustee, theServicer, any Noteholder, the Transfer Agent and Registrar, the NoteAdministrator or the Paying Agent, within five (5) Business Days after receiptby the Issuer of a written request therefor from the Indenture Trustee, theServicer, such Noteholder, the Transfer Agent and Registrar, the NoteAdministrator or the Paying Agent, respectively, a list of the names andaddresses of the Noteholders.  Unlessotherwise provided in the related Indenture Supplement, holders of 10% of theOutstanding Amount of the Notes of any Series (the “**Applicants**”) may apply in writing tothe Note Administrator, and if such application states that the Applicantsdesire to communicate with other Noteholders of any Series with respect totheir rights under this 

 

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Indenture or under the Notes and is accompanied by a copy of thecommunication which such Applicants propose to transmit, then the Note Administrator,after having been adequately indemnified by such Applicants for its costs andexpenses, shall afford or shall cause the Transfer Agent and Registrar toafford such Applicants access during normal business hours to the most recentlist of Noteholders held by the Note Administrator and shall give the Servicernotice that such request has been made, within five (5) Business Days after thereceipt of such application.  Such listshall be as of a date no more than forty-five (45) days prior to the date ofreceipt of such Applicants’ request; provided that the CertificateTrustee as Holder, if applicable, shall vote in accordance with the provisionsof the relevant Pass-Through Trust Agreement.

 

(b)           EveryNoteholder, by receiving and holding a Note, agrees that none of the Issuer,the Indenture Trustee, the Note Administrator, the Transfer Agent andRegistrar, the Paying Agent and the Servicer or any of their respective agentsand employees shall be held accountable by reason of the disclosure of any suchinformation as to the names and addresses of the Noteholders hereunder,regardless of the sources from which such information was derived.

 

Section 2.10.          Cancellation.

 

All Notes surrendered for payment, registration oftransfer, exchange or redemption shall, if surrendered to any Person other thanthe Note Administrator, be delivered to the Transfer Agent and Registrar andshall be promptly canceled by it. Pursuant to an Issuer Request, the Issuer may at any time deliver to theTransfer Agent and Registrar for cancellation any Notes previouslyauthenticated and delivered hereunder which the Issuer may have acquired in anylawful manner whatsoever, and all Notes so delivered shall be promptly canceledby the Transfer Agent and Registrar.  NoNotes shall be authenticated in lieu of or in exchange for any Notes canceledas provided in this Section 2.10, except as expressly permitted by thisIndenture.  All canceled Notes held bythe Transfer Agent and Registrar shall be destroyed unless the Issuer shall directby a timely order that they be returned to it.

 

Section 2.11.          NewIssuances.

 

(a)           Pursuantto one or more Indenture Supplements, the Issuer may from time to time issueone or more new Series of Notes (a “**NewIssuance**”).  The Notes ofall outstanding Series shall be equally and ratably entitled as provided hereinto the benefits of this Indenture without preference, priority or distinction,all in accordance with the terms and provisions of this Indenture and theapplicable Indenture Supplement except, with respect to any Series or Class, asprovided in the related Indenture Supplement. Interest on the Notes of all outstanding Series shall be paid on eachDistribution Date as specified in the Indenture Supplement relating to suchoutstanding Series.  Principal of theNotes of each outstanding Series shall be paid as specified in the IndentureSupplement relating to such outstanding Series.  An overcollateralization interest may also be issued inconnection with any such New Issuance.

 

(b)           Onor before the Series Issuance Date relating to any new Series of Notes, theparties hereto will execute and deliver an Indenture Supplement which willspecify the Principal Terms of such Series. The terms of such Indenture Supplement may modify or amend the terms ofthis Indenture solely as applied to such new Series.  The obligation of the Owner Trustee to execute, on behalf of theIssuer, the Notes of any Series and of the Indenture Trustee or anauthenticating agent on its behalf to authenticate such Notes and to executeand deliver the related Indenture Supplement (other than any Series issuedpursuant to an Indenture Supplement dated of even date herewith) is subject tothe satisfaction of the following conditions:

 

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(i)            on or before the fifth Business Dayimmediately preceding the Series Issuance Date the Issuer shall have given theOwner Trustee, the Indenture Trustee, the Note Administrator, the Servicer, theO/C Holder, the Transferor and each Rating Agency notice (unless such noticerequirement is otherwise waived) of such issuance and the Series Issuance Date;

 

(ii)           the Issuer shall have delivered tothe Owner Trustee, the Note Administrator and the Indenture Trustee any relatedIndenture Supplement, in form satisfactory to the Owner Trustee (as such and inits individual capacity), the Note Administrator and the Indenture Trustee,executed by each party;

 

(iii)          the Issuer shall have delivered to theOwner Trustee, the Note Administrator and the Indenture Trustee any relatedEnhancement Agreement executed by the provider of the credit enhancement andthe other parties thereto;

 

(iv)          the Rating Agency Condition shall havebeen satisfied with respect to such issuance;

 

(v)           such issuance will not result in anyAdverse Effect and the O/C Holder shall have delivered to the Owner Trustee,the Note Administrator and the Indenture Trustee an Officer’s Certificate,dated the Series Issuance Date to the effect that (i) the O/C Holderreasonably believes that such issuance will not, based on the facts known tosuch officer at the time of such certification, have an Adverse Effect, and(ii) all conditions precedent to such execution, authentication, anddelivery have been satisfied; and

 

(vi)          there shall have been delivered to theOwner Trustee, the Note Administrator and the Indenture Trustee (with a copy toeach Rating Agency) a Tax Opinion, dated the Series Issuance Date with respectto such issuance.

 

Any Note held by the Transferor at any time after thedate of its initial issuance may be transferred or exchanged only upon thedelivery to the Owner Trustee, the Note Administrator and the Indenture Trusteeof a Tax Opinion dated as of the date of such transfer or exchange, as the casemay be, with respect to such transfer or exchange.

 

Upon satisfaction of the above conditions (withrespect to which the Owner Trustee, the Indenture Trustee and the NoteAdministrator may rely on a certificate of the Administrator or the O/CHolder), pursuant to Section 2.03, the Owner Trustee, on behalf of the Issuer,shall execute and the Indenture Trustee shall authenticate and deliver theNotes of such Series as provided in this Indenture and the applicable IndentureSupplement.  Notwithstanding theprovisions of this Section 2.11, prior to the execution of any IndentureSupplement (other than any Indenture Supplement dated of even date herewith),the Indenture Trustee, the Note Administrator and the Owner Trustee shall beentitled to receive and rely upon an Opinion of Counsel stating that theexecution of such Indenture Supplement is authorized or permitted by thisIndenture and any Indenture Supplement related to any outstanding Series.  The Indenture Trustee, the NoteAdministrator and the Owner Trustee may, but shall not be obligated to, enterinto any such Indenture Supplement which adversely affects the IndentureTrustee’s, the Note Administrator’s or the Owner Trustee’s (as such or in itsindividual capacity) own rights, duties, benefits, protections, privileges orimmunities under this Indenture.

 

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ARTICLE III

 

COVENANTS OF ISSUER

 

Section 3.01.          Paymentof Principal and Interest.

 

(a)           TheIssuer will duly and punctually pay principal and interest in accordance withthe terms of the Notes and the O/C Certificate as specified in the relevantIndenture Supplement.

 

(b)           TheNoteholders and the O/C Holder of a Series as of the Record Date in respect ofa Distribution Date shall be entitled to the interest accrued and payable andprincipal payable on such Distribution Date as specified in the relatedIndenture Supplement.  All paymentobligations under a Note or an O/C Certificate are discharged to the extentsuch payments are made to the Noteholder or the O/C Holder, as applicable, ofrecord.

 

Section 3.02.          Maintenanceof Office or Agency.

 

The Issuer will maintain an office or agency withinthe Borough of Manhattan, City of New York and such other locations as may beset forth in an Indenture Supplement where Notes may be presented or surrenderedfor payment, where Notes may be surrendered for registration of transfer orexchange and where notices and demands to or upon the Issuer in respect of theNotes and this Indenture may be served. The Issuer hereby initially appoints the Note Administrator at itsCorporate Trust Office to serve as its agent for the foregoing purposes.  The Issuer will give prompt written noticeto the Transferor, the Note Administrator, the Indenture Trustee, the NoteAdministrator and the Noteholders of the location, and of any change in thelocation, of any such office or agency. If at any time the Issuer shall fail to maintain any such office oragency or shall fail to furnish the Indenture Trustee and the Note Administratorwith the address thereof, such presentations, surrenders, notices and demandsmay be made or served at the Corporate Trust Office, and the Issuer herebyappoints the Note Administrator at its Corporate Trust Office as its agent toreceive all such presentations, surrenders, notices and demands.

 

Section 3.03.          Moneyfor Note Payments to Be Held in Trust.

 

As specified in Section 8.03 herein and in the relatedIndenture Supplement, all payments of amounts due and payable with respect tothe Notes or the O/C Certificate which are to be made from amounts withdrawnfrom the Collection Account or any Series Account shall be made from amountsheld therein on behalf of the Issuer by the Indenture Trustee or by the PayingAgent, and no amounts so withdrawn from the Collection Account or any SeriesAccount shall be paid over to or at the direction of the Issuer except asprovided in this Section 3.03 and in the related Indenture Supplement.

 

Whenever the Issuer shall have a Paying Agent inaddition to the Note Administrator, it will, on or before the Business Day nextpreceding each Distribution Date, direct the Note Administrator to deposit withsuch Paying Agent on or before such Distribution Date an aggregate sumsufficient to pay the amounts then becoming due, such sum to be (i) held intrust for the benefit of Persons entitled thereto and (ii) invested,pursuant to an Issuer Order, by the Paying Agent in an Eligible Investment inaccordance with the terms of this Indenture and the related IndentureSupplement.  For all investments made bya Paying Agent under this Section 3.03, such Paying Agent shall be entitled toall of the rights and obligations of the Indenture 

 

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Trustee and the Note Administrator under the related IndentureSupplement, such rights and obligations being incorporated in this paragraph bythis reference.

 

The Issuer will cause each Paying Agent other than theNote Administrator or the Indenture Trustee to execute and deliver to theIndenture Trustee and the Note Administrator an instrument in which such PayingAgent shall agree with the Indenture Trustee and the Note Administrator (and ifthe Note Administrator or the Indenture Trustee acts as Paying Agent, it herebyso agrees), subject to the provisions of this Section 3.03, that suchPaying Agent, in acting as Paying Agent, is an express agent of the Issuer and,further, that such Paying Agent will:

 

(i)            hold all sums held by it for thepayment of amounts due with respect to the Notes and the O/C Certificate intrust for the benefit of the Persons entitled thereto until such sums shall bepaid to such Persons or otherwise disposed of as herein provided and pay suchsums to such Persons as herein provided;

 

(ii)           give the Indenture Trustee notice ofany default by the Issuer (or any other obligor upon the Notes) of which aResponsible Officer of the Paying Agent has actual knowledge in the making ofany payment required to be made with respect to the Notes;

 

(iii)          at any time during the continuance ofany such default, upon the written request of the Indenture Trustee, forthwithpay to the Indenture Trustee all sums so held in trust by such Paying Agent;

 

(iv)          immediately resign as a Paying Agentand forthwith pay to the Indenture Trustee all sums held by it by in trust forthe payment of Notes and the O/C Certificate if at any time it ceases to meetthe standards required to be met by a Paying Agent at the time of itsappointment; and

 

(v)           comply with all requirements of theCode with respect to the withholding from any payments made by it on any Notesof any applicable withholding taxes imposed thereon and with respect to anyapplicable reporting requirements in connection therewith.

 

The Issuer may at any time, for the purpose ofobtaining the satisfaction and discharge of this Indenture or for any otherpurpose, by Issuer Order direct any Paying Agent to pay to the IndentureTrustee or the Note Administrator all sums held in trust by such Paying Agent,such sums to be held by the Indenture Trustee or the Note Administrator, as thecase may be, upon the same trusts as those upon which such sums were held bysuch Paying Agent; and upon such payment by any Paying Agent to the IndentureTrustee or the Note Administrator, as the case may be, such Paying Agent shallbe released from all further liability with respect to such money.

 

Section 3.04.          Existence.

 

The Issuer will keep in full effect its existence,rights and franchises as a business trust under the laws of the State ofDelaware (unless it becomes, or any successor Issuer hereunder is or becomes,organized under the laws of any other state or of the United States of America,in which case the Issuer will keep in full effect its existence, rights andfranchises under the laws of such other jurisdiction) and will obtain andpreserve its qualification to do business in each jurisdiction in which suchqualification is or shall be necessary to protect the validity and 

 

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enforceability of this Indenture, the Notes, the O/C Certificate (if sospecified in the related Indenture Supplement), the Collateral and each otherrelated instrument or agreement.

 

Section 3.05.          Protectionof Trust.

 

The Issuer will from time to time prepare, or cause tobe prepared, execute and deliver all such supplements and amendments hereto andall such financing statements, amendments to financing statements, instrumentsof further assurance and other instruments, and will take such other actionnecessary or advisable to:

 

(a)           Grantmore effectively all or any portion of the Collateral as security for the Notesand the other interests in the Receivables as specified in the relatedIndenture Supplement;

 

(b)           maintainor preserve the Lien (and the priority thereof) of this Indenture or to carryout more effectively the purposes hereof;

 

(c)           perfect,publish notice of, or protect the validity of any Grant made or to be made bythis Indenture;

 

(d)           enforceany of the Collateral; or

 

(e)           preserveand defend title to the Collateral securing the Notes and the other interests inthe Receivables as specified in the related Indenture Supplement and the rightstherein of the Indenture Trustee, the Noteholders and the holders of such otherinterests secured thereby against the claims of all Persons and parties.

 

The Issuer hereby designates the Administrator itsagent and attorney-in-fact to execute any financing statement, amendment to afinancing statement or other instrument required pursuant to this Section 3.05.

 

The Issuer shall pay or cause to be paid any taxeslevied on all or any part of Receivables securing the Notes and the otherinterests in the Receivables as specified in the related Indenture Supplement.

 

Section 3.06.          Opinionsas to Collateral.

 

(a)           Onthe Series Issuance Date relating to any new Series of Notes, the Issuer shallfurnish to the Indenture Trustee and the Note Administrator an Opinion ofCounsel (with a copy to each Rating Agency) either stating that, in the opinionof such counsel, such action has been taken to perfect the security interest ofthis Indenture and the related Indenture Supplement, including withoutlimitation with respect to the recording and filing of this Indenture, anyindentures supplemental hereto, and any other requisite documents, and withrespect to the execution and filing of any financing statements and amendmentsto financing statements, as is necessary and reciting the details of suchaction, or stating that, in the opinion of such counsel, no such action isnecessary to maintain the perfection of such security interest, and that suchperfected security interest is of first priority.

 

(b)           Onor before June 30 in each calendar year, beginning in 2003, the Issuer shallfurnish to the Indenture Trustee and the Note Administrator an Opinion ofCounsel (with a copy to each Rating Agency) either stating that, in the opinionof such counsel, such action has 

 

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been taken to perfect the security interest of this Indenture and therelated Indenture Supplement, including without limitation with respect to therecording, filing, re-recording and refiling of this Indenture, any indenturessupplemental hereto and any other requisite documents and with respect to theexecution and filing of any financing statements and amendments to financing statementsas is necessary and reciting the details of such action or stating that in theopinion of such counsel no such action is necessary to maintain the perfectionof such security interest, and that such perfected security interest is offirst priority.  Such Opinion of Counselshall also describe the recording, filing, re-recording and refiling of thisIndenture, any indentures supplemental hereto and any other requisite documentsand the execution and filing of any financing statements and amendments tofinancing statements that will, in the opinion of such counsel, be required tomaintain the perfection of the Lien and security interest of this Indentureuntil June 30 in the following calendar year.

 

Section 3.07.          Performanceof Obligations; Servicing of Receivables.

 

(a)           TheIssuer will not take any action and will use its best efforts not to permit anyaction to be taken by others that would release any Person from any of suchPerson’s material covenants or obligations under any instrument or agreementincluded in the Collateral or that would result in the amendment,hypothecation, subordination, termination or discharge of, or impair thevalidity or effectiveness of, any such instrument or agreement, except asexpressly provided in this Indenture, the Transfer and Servicing Agreement orsuch other instrument or agreement.

 

(b)           TheIssuer may contract with other Persons to assist it in performing its dutiesunder this Indenture, and any performance of such duties by a Person identifiedto the Indenture Trustee and the Note Administrator in an Officer’s Certificateof the Issuer shall be deemed to be action taken by the Issuer.  Initially, the Issuer has contracted withthe Administrator to assist the Issuer in performing its duties under thisIndenture.

 

(c)           TheIssuer will punctually perform and observe all of its obligations andagreements contained in this Indenture, the other Transaction Documents and inthe instruments and agreements relating to the Collateral, including but notlimited to filing or causing to be filed all financing statements andamendments to financing statements required to be filed by the terms of thisIndenture and the Transfer and Servicing Agreement in accordance with andwithin the time periods provided for herein and therein.  Except as otherwise expressly providedherein or therein, the Issuer shall not waive, amend, modify, supplement orterminate any Transaction Document or any provision thereof without the consentof the Holders of at least 66-2/3% of the Outstanding Amount of the Notes ofeach adversely affected Series; provided that the Certificate Trustee asHolder, if applicable, shall vote in accordance with the provisions of therelevant Pass-Through Trust Agreement. The Issuer agrees to provide each Rating Agency with notice of suchwaiver, amendment, modification, supplement or termination.

 

(d)           Ifthe Issuer shall have knowledge of the occurrence of a Servicer Default underthe Transfer and Servicing Agreement, the Issuer shall provide notice thereofto the Note Administrator and shall cause the Note Administrator to promptlynotify the Transferor, the O/C Holder and the Rating Agencies thereof, and theIssuer shall specify in the notice to the Note Administrator the action, ifany, being taken with respect to such default. If a Servicer Default shall arise from the failure of the Servicer toperform any of its duties or obligations under the Transfer and ServicingAgreement with respect to the Receivables, the Issuer shall take all reasonablesteps available to it to remedy such failure.

 

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(e)           TheNote Administrator hereby agrees to the provisions of Sections 5.05, 7.01 and7.02 of the Transfer and Servicing Agreement.

 

(f)            Withoutderogating from the absolute nature of the assignment granted to the IndentureTrustee under this Indenture or the rights of the Indenture Trustee hereunder,the Issuer agrees (i) that it will not, without the prior written consentof the Indenture Trustee acting at the direction of the Holders of at least66-2/3% of the Outstanding Amount of the Notes of each Class of each Series,amend, modify, waive, supplement, terminate or surrender, or agree to anyamendment, modification, supplement, termination, waiver or surrender of, theterms of any Collateral (except to the extent otherwise provided in theTransfer and Servicing Agreement) or the Transaction Documents (except to theextent otherwise provided in the Transaction Documents), or waive timelyperformance or observance by the Servicer or the Transferor under the Transferand Servicing Agreement; and (ii) that any such amendment shall not (A) reduce in any manner the amount of, or delay the timing of, collections ofpayments on the Receivables or distributions that are required to be made forthe benefit of the Noteholders or (B) reduce the aforesaid percentage ofthe Notes that is required to consent to any such amendment, without theconsent of the Holders of all the Outstanding Notes.  If any such amendment, modification, supplement or waiver shallbe so consented to by the Indenture Trustee and such Noteholders, the Issueragrees, promptly following a request by the Indenture Trustee to do so, toexecute and deliver, in its own name and at its own expense, such agreements,instruments, consents and other documents as the Indenture Trustee may deemnecessary or appropriate in the circumstances and to provide each Rating Agencywith notice of such amendment, modification, supplement or waiver.

 

(g)           TheIssuer shall deliver to the Note Administrator, as agent of the IndentureTrustee, any computer file or microfiche list of Accounts received by itpursuant to the Transfer and Servicing Agreement.  Such file or list, as amended from time to time, is herebyincorporated into and made a part of, this Indenture.

 

Section 3.08.          NegativeCovenants.

 

So long as any Notes or any other interests in theReceivables as specified in the related Indenture Supplement are Outstanding,the Issuer will not:

 

(a)           sell,transfer, exchange, or otherwise dispose of any part of the Collateral exceptas expressly permitted by this Indenture, any Indenture Supplement, the TrustAgreement or the Transfer and Servicing Agreement;

 

(b)           claimany credit on, or make any deduction from, the principal and interest payablein respect of the Notes or the O/C Certificate (other than amounts properlywithheld from such payments under the Code or applicable state law) or assertany claim against any present or former Noteholder by reason of the payment ofany taxes levied or assessed upon any part of the Collateral;

 

(c)           (A)permit the validity or effectiveness of this Indenture to be impaired, orpermit the Lien of this Indenture to be amended, hypothecated, subordinated,terminated or discharged, or permit any Person to be released from anycovenants or obligations with respect to the Notes under this Indenture exceptas may be expressly permitted hereby, (B) permit any Lien (other than the Lienof this Indenture) to be created on or extend to or otherwise arise upon orburden the Collateral or any part thereof or any interest therein or theproceeds thereof or

 

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(C) permit the Lien of this Indenture not to constitute a validfirst priority security interest in the Collateral; or

 

(d)           voluntarilydissolve or liquidate in whole or in part.

 

Section 3.09.          Statementsas to Compliance.

 

The Issuer will deliver to the Indenture Trustee andthe Note Administrator, within 120 days after the end of each calendar year, anOfficer’s Certificate stating, as to the Authorized Officer signing suchOfficer’s Certificate, that

 

(i)            a review of the activities of theIssuer during the 12-month period ending December 31 of such year (or in thecase of the year ending December 31, 2002, the period from the first ClosingDate to December 31, 2002) and of performance under this Indenture hasbeen made under such Authorized Officer’s supervision, and

 

(ii)           to the best of such AuthorizedOfficer’s knowledge, based on such review, the Issuer has complied with allconditions and covenants under this Indenture throughout such year, or, ifthere has been a default in the compliance of any such condition or covenant,specifying each such default known to such Authorized Officer and the natureand status thereof.

 

Section 3.10.          IssuerMay Consolidate, Etc., Only on Certain Terms.

 

(a)           TheIssuer shall not consolidate or merge with or into any other Person, unless:

 

(i)            the Person (if other than theIssuer) formed by or surviving such consolidation or merger (A) shall be aPerson organized and existing under the laws of the United States of America orany state thereof or the District of Columbia, (B) shall not be subject toregulation as an “investment company” under the Investment Company Act and (C)shall expressly assume, by an indenture supplemental hereto, executed anddelivered to the Indenture Trustee and the Note Administrator, in a formsatisfactory to the Indenture Trustee and the Note Administrator, the due andpunctual payment of the principal of and interest on all Notes and theperformance or observance of every agreement and covenant of this Indenture onthe part of the Issuer to be performed or observed;

 

(ii)           immediately after giving effect tosuch transaction, no Event of Default or Redemption Event shall have occurredand be continuing;

 

(iii)          the Issuer shall have delivered to theIndenture Trustee and the Note Administrator an Officer’s Certificate and anOpinion of Counsel each stating that (A) such consolidation or merger and suchsupplemental indenture comply with this Section 3.10, (B) all conditionsprecedent in this Section 3.10 relating to such transaction have been compliedwith, and (C) such supplemental indenture is duly authorized, executed anddelivered and is valid, binding and enforceable against such Person;

 

(iv)          the Rating Agency Condition shall havebeen satisfied with respect to such transaction;

 

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(v)           the Issuer shall have received a TaxOpinion and an Opinion of Counsel dated the date of such consolidation ormerger (and shall have delivered copies thereof to the Indenture Trustee, theNote Administrator and each Rating Agency) to the effect that such transactionwill not have any material adverse federal income tax consequence to anyNoteholder; and

 

(vi)          any action that is necessary tomaintain the Lien and security interest created by this Indenture and anyIndenture Supplement shall have been taken.

 

(b)           Exceptas otherwise expressly permitted by this Indenture or the other TransactionDocuments, the Issuer shall not convey or transfer any of its properties orassets, including those included in the Collateral, substantially as anentirety to any Person, unless:

 

(i)            the Person that acquires byconveyance or transfer the properties and assets of the Issuer the conveyanceor transfer of which is hereby restricted shall (A) be a Person organized andexisting under the laws of the United States of America or any state thereof orthe District of Columbia, (B) expressly assume, by an indenture supplementalhereto, executed and delivered to the Indenture Trustee and the NoteAdministrator, in form satisfactory to the Indenture Trustee and the NoteAdministrator, the due and punctual payment of the principal of and interest onall Notes and the performance or observance of every agreement and covenant ofthis Indenture on the part of the Issuer to be performed or observed, all asprovided herein, (C) expressly agree by means of such supplemental indenturethat all right, title and interest so conveyed or transferred shall be subjectand subordinate to the rights of Holders of the Notes, (D) unless otherwiseprovided in such supplemental indenture, expressly agree to indemnify, defendand hold harmless the Indenture Trustee and the Note Administrator against andfrom any loss, liability or expense arising under or related to this Indentureand the Notes and (E) not be subject to regulation as an “investmentcompany” under the Investment Company Act;

 

(ii)           immediately after giving effect tosuch transaction, no Event of Default or Redemption Event shall have occurredand be continuing;

 

(iii)          the Rating Agency Condition shall havebeen satisfied with respect to such transaction;

 

(iv)          the Issuer shall have received a TaxOpinion and an Opinion of Counsel dated the date of such conveyance or transfer(and shall have delivered copies thereof to the Indenture Trustee, the NoteAdministrator and each Rating Agency) to the effect that such transaction willnot have any material adverse federal income tax consequence to any Noteholder;

 

(v)           any action that is necessary tomaintain the Lien and security interest created by this Indenture and anyIndenture Supplement shall have been taken; and

 

(vi)          the Issuer shall have delivered to theIndenture Trustee and the Note Administrator an Officer’s Certificate and anOpinion of Counsel each stating that (A) such conveyance or transfer and suchsupplemental indenture 

 

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comply with this Section 3.10, (B) all conditionsprecedent in this Section 3.10 relating to such transaction have been compliedwith, and (C) such supplemental indenture is duly authorized, executed anddelivered and is valid, binding and enforceable against such Person.

 

Section 3.11.          SuccessorSubstituted.

 

Upon any consolidation or merger, or any conveyance ortransfer of the properties and assets of the Issuer substantially as anentirety in accordance with Section 3.10 hereof, the Person formed by orsurviving such consolidation or merger (if other than the Issuer) or the Personto which such conveyance or transfer is made shall succeed to, and besubstituted for, and may exercise every right and power of, the Issuer underthis Indenture with the same effect as if such Person had been named as theIssuer herein.  In the event of any suchconveyance or transfer, the Person named as the Issuer in the first paragraphof this Indenture or any successor which shall theretofore have become such inthe manner prescribed in this Section 3.11 shall be released from itsobligations under this Indenture as issued immediately upon the effectivenessof such conveyance or transfer.

 

Section 3.12.          NoOther Business.

 

The Issuer shall not engage in any business other thanthe activities set forth in Section 2.03 of the Trust Agreement and allactivities incidental thereto or other than as required or authorized by theterms of the Transaction Documents.

 

Section 3.13.          NoBorrowing.

 

The Issuer shall not issue, incur, assume, guaranteeor otherwise become liable, directly or indirectly, for any indebtedness exceptas expressly provided for pursuant to the terms of the Transaction Documentsand the Notes.

 

Section 3.14.          Servicer’sObligations. The Issuer shall use all reasonable efforts to cause the Servicerto comply with all of its obligations under the Transaction Documents.

 

Section 3.15.          Guarantees,Loans, Advances and Other Liabilities.

 

Except as contemplated by this Indenture or theTransfer and Servicing Agreement, the Issuer shall not make any loan or advanceor credit to, or guarantee (directly or indirectly or by an instrument havingthe effect of assuring another’s payment or performance on any obligation orcapability of so doing or otherwise), endorse or otherwise become contingentlyliable, directly or indirectly, in connection with the obligations, stocks ordividends of, or own, purchase, repurchase or acquire (or agree contingently todo so) any stock, obligations, assets or securities of, or any other interestin, or make any capital contribution to, any other Person.

 

Section 3.16.          CapitalExpenditures.

 

The Issuer shall not make any expenditure (bylong-term or operating lease or otherwise) for capital assets (either realty orpersonalty).

 

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Section 3.17.          Removalof Administrator.

 

So long as any Notes or any other interests in theReceivables specified in the related Indenture Supplement are outstanding, theIssuer shall not remove the Administrator without cause unless the Rating AgencyCondition shall have been satisfied in connection with such removal.

 

Section 3.18.          RestrictedPayments.

 

The Issuer shall not, directly or indirectly, (i) payany dividend or make any distribution (by reduction of capital or otherwise),whether in cash, property, securities or a combination thereof, to the OwnerTrustee or any owner of a beneficial interest in the Issuer or otherwise withrespect to any ownership or equity interest or security in or of the Issuer orto the Servicer, (ii) redeem, purchase, retire or otherwise acquire for valueany such ownership or equity interest or security or (iii) set aside orotherwise segregate any amounts for any such purpose; provided, however,that the Issuer may make, or cause to be made, (x) distributions as contemplatedby, and to the extent funds are available for such purpose under, the Transferand Servicing Agreement, the Trust Agreement or any Indenture Supplement and(y) payments to the Indenture Trustee and the Note Administrator pursuant toSection 6.07 hereof.  The Issuer willnot, directly or indirectly, make payments to or distributions from theCollection Account or any Series Account except in accordance with theTransaction Documents.

 

Section 3.19.          Noticeof Events of Default

 

The Issuer agrees to give the Transferor, theServicer, the Indenture Trustee, the Note Administrator and the Rating Agenciesprompt written notice of each Event of Default hereunder and, immediately afterobtaining knowledge of any of the following occurrences, written notice of eachdefault on the part of the Servicer, the O/C Holder or the Transferor of itsobligations under the Transfer and Servicing Agreement, each default on thepart of the Accounts Owner of its obligations under the Receivables PurchaseAgreement and any action taken by the Indenture Trustee pursuant toSection 5.05 of this Indenture.

 

Section 3.20.          FurtherInstruments and Acts.

 

Upon request of the Indenture Trustee or the NoteAdministrator, the Issuer will execute and deliver such further instruments anddo such further acts as may be reasonably necessary or proper to carry out moreeffectively the purposes of this Indenture.

 

ARTICLE IV

 

SATISFACTION ANDDISCHARGE

 

Section 4.01.          Satisfactionand Discharge of this Indenture.

 

This Indenture shall cease to be of further effectwith respect to the Notes or any other interests in the Receivables specifiedin the related Indenture Supplement except as to (a) rights ofregistration of transfer and exchange, (b) substitution of mutilated,destroyed, lost or stolen Notes, (c) the rights of Noteholders to receivepayments of principal thereof and interest thereon, (d) Sections 3.08,3.11, 3.12 and 12.15, (e) the rights and immunities of the Indenture Trusteeand the Note Administrator hereunder, including the rights of the IndentureTrustee and the Note Administrator under Section 6.07, (f) the obligations ofthe Note Administrator under 

 

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Section 4.02, and (g) the rights of Noteholders as beneficiaries hereofwith respect to the property so deposited with the Indenture Trustee andpayable to all or any of them, and the Indenture Trustee and the NoteAdministrator, on demand of and at the expense of the Issuer, with the consentof the O/C Holder, shall execute proper instruments (prepared by or on behalfof the Issuer) acknowledging satisfaction and discharge of this Indenture withrespect to the Notes when:

 

(i)            either

 

(A)          all Notes and the O/C Certificatetheretofore authenticated and delivered (other than (1) Notes which havebeen destroyed, lost or stolen and which have been replaced, or paid asprovided in Section 2.06, and (2) Notes or O/C Certificates for whose fullpayment (principal and interest) money has theretofore been deposited in trustor segregated and held in trust by the Indenture Trustee or the NoteAdministrator) have been delivered to the Transfer Agent and Registrar forcancellation; or

 

(B)           all Notes and O/C Certificates nottheretofore delivered to the Note Administrator for cancellation:

 

(1)           have become due and payable;

 

(2)           will become due and payable at theFinal Maturity Date for such Class or Series of Notes; or

 

(3)           are to be called for redemptionwithin one year under arrangements satisfactory to the Note Administrator forthe giving of notice of redemption by the Note Administrator in the name, andat the expense, of the Issuer;

 

and the Issuer, in the case of (1), (2) or (3) above,has irrevocably deposited or caused to be irrevocably deposited with the NoteAdministrator cash or direct obligations of or obligations guaranteed by theUnited States of America (which will mature prior to the date such amounts arepayable), in trust for such purpose, in an amount sufficient to pay anddischarge the entire indebtedness on such Notes not theretofore delivered tothe Note Administrator for cancellation when due at the Final Maturity Date forsuch Class or Series of Notes or the Redemption Date (if Notes shall have beencalled for redemption pursuant to the related Indenture Supplement), as thecase may be;

 

(ii)           the Issuer has paid or caused to bepaid all other sums payable hereunder by the Issuer (including to any O/CHolder); and

 

(iii)          the Issuer has delivered to theIndenture Trustee and the Note Administrator an Officer’s Certificate and anOpinion of Counsel, each meeting the applicable requirements of Section12.01(a) and each stating that all conditions precedent herein provided forrelating to the satisfaction and discharge of this Indenture have been compliedwith.

 

Section 4.02.          Applicationof Trust Money.

 

All monies deposited with the Note Administratorpursuant to Section 4.01 hereof shall be held in trust and applied by it, inaccordance with the provisions of the Notes, this Indenture and the applicableIndenture Supplement, to make payments, either directly or through 

 

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any Paying Agent, as the Note Administrator may determine, to theNoteholders and for the payment in respect of which such monies have beendeposited with the Note Administrator, of all sums due and to become duethereon for principal and interest; but such monies need not be segregated fromother funds except to the extent required herein or in the Transfer andServicing Agreement or required by law.

 

ARTICLE V

 

REDEMPTION EVENTS,DEFAULTS AND REMEDIES

 

Section 5.01.          RedemptionEvents.

 

If the Trust shall become subject to regulation as an“investment company” within the meaning of the Investment Company Act (a “**Trust Redemption Event**”), then aRedemption Event with respect to the Notes of all Series shall occur withoutany notice or other action on the part of the Indenture Trustee or theNoteholders immediately upon the occurrence of such event.

 

Upon the occurrence of a Redemption Event, a rapidamortization period with respect to the Notes of all Series shall commence andpayment on the Notes of each Series will be made in accordance with the termsof the related Indenture Supplement.

 

Section 5.02.          Eventsof Default.  

 

“**Event of Default**,”wherever used herein, means with respect to any Series any one of the followingevents (whatever the reason for such Event of Default and whether it shall bevoluntary or involuntary or be effected by operation of law or pursuant to anyjudgment, decree or order of any court or any order, rule or regulation of anyadministrative or governmental body):

 

(a)           defaultin the payment of the principal of any Note of that Series, if not previouslypaid, when the same becomes due and payable; or

 

(b)           defaultin the payment of any interest on the outstanding principal balance of (i) anyClass A Note (as any such Note may be designated in the related IndentureSupplement) of that Series when the same becomes due and payable, and (ii) anyClass B Note (as any such Note may be designated in the related IndentureSupplement) of that Series when the same becomes due and payable, but only ifall Class A Notes of such Series have been paid in full; and such default shallcontinue after the earlier to occur of (A) the next following date upon whichinterest becomes due and payable and (B) the date occurring 35 daysfollowing the date on which such interest became due and payable; or

 

(c)           defaultin the observance or performance of any covenant or agreement of the Issuermade in this Indenture made in respect of the Notes of such Series (other thana covenant, or agreement, a default in the observance or performance of whichis elsewhere in this Section 5.02 specifically dealt with) (all of suchcovenants and agreements in this Indenture which are not expressly stated to befor the benefit of a particular Series being deemed to be in respect of theNotes of all Series for this purpose), and such default shall continue or notbe cured for a period of sixty (60) days after there shall have been given, bywritten registered or certified mail, return receipt requested to the Issuer bythe Indenture Trustee or to the Issuer and the Indenture Trustee by the Holdersof at least 50% of the Outstanding Amount of the Notes of such 

 

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Series, a written notice specifying such default and requiring it to beremedied and stating that such notice is a “**Notice of Default**” hereunder and, as a result of suchdefault, the interests of the Holders of the Notes are materially and adverselyaffected and continue to be materially and adversely affected during such60-day period; or

 

(d)           thefiling of a decree or order for relief by a court having jurisdiction in thepremises in respect of the Issuer in an involuntary case under any applicablefederal or state bankruptcy, insolvency or other similar law now or hereafterin effect, or appointing a receiver, conservator, liquidator, assignee,custodian, trustee, sequestrator or similar official for the Issuer or orderingthe winding-up or liquidation of the Issuer’s affairs, and such decree or ordershall remain unstayed and in effect for a period of sixty (60) consecutivedays; or

 

(e)           thecommencement by the Issuer of a voluntary case under any applicable federal orstate bankruptcy, insolvency or other similar law now or hereafter in effect,or the consent by the Issuer to the entry of an order for relief in aninvoluntary case under any such law, or the consent by the Issuer to theappointment of or the taking possession by a receiver, liquidator, assignee,custodian, trustee, sequestrator, conservator or similar official of theIssuer, or the making by the Issuer of any general assignment for the benefitof creditors, or the failure by the Issuer generally to pay, or the admissionin writing by the Issuer of its inability to pay, its debts as such debtsbecome due, or the taking of action by the Issuer in furtherance of any of theforegoing.

 

The Issuer shall deliver to the Indenture Trustee,within five (5) days after the occurrence thereof, written notice in the formof an Officer’s Certificate of any event which with the giving of notice andthe lapse of time would become an Event of Default, its status and what actionthe Issuer is taking or proposes to take with respect thereto.

 

Section 5.03.          Accelerationof Maturity; Rescission and Annulment.

 

If an Event of Default described in paragraph (a), (b)or (c) of Section 5.02 should occur and be continuing with respect to a Series,then and in every such case the Indenture Trustee or the ControllingNoteholders of such Series may declare all the Notes of such Series to beimmediately due and payable, by a notice in writing to the Issuer and theTransferor (and to the Indenture Trustee if declared by Noteholders), and uponany such declaration the unpaid principal amount of such Notes, together withaccrued and unpaid interest thereon through the date of acceleration, shallbecome immediately due and payable.

 

If an Event of Default described in paragraph (d) or(e) of Section 5.02 should occur and be continuing, then the unpaid principalamount of the Notes, together with accrued and unpaid interest thereon throughthe date of acceleration, shall automatically become, and shall be deemed to bedeclared, due and payable.

 

At any time after such declaration of acceleration ofmaturity has been made and before a judgment or decree for payment of the moneydue has been obtained by the Indenture Trustee as hereinafter in this Article Vprovided, the Controlling Noteholders, by written notice to the Issuer, theTransferor and the Indenture Trustee, may rescind and annul such declarationand its consequences.

 

No such rescission shall affect any subsequent defaultor impair any right consequent thereto.

 

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Section 5.04.          Collectionof Indebtedness and Suits for Enforcement by Indenture Trustee.

 

(a)           TheIssuer covenants that if (i) default is made in the payment of anyinterest on any Note when the same becomes due and payable, and such defaultshall continue after the earlier to occur of (x) the next following dateupon which interest becomes due and payable and (y) the date occurringthirty-five (35) days following the date on which such interest became due andpayable, or (ii) default is made in the payment of principal of any Note,if and to the extent not previously paid, when the same becomes due andpayable, the Issuer will, upon demand of the Indenture Trustee, pay to theIndenture Trustee, for the benefit of the Holders of the Notes of the affectedSeries, the whole amount then due and payable on such Notes for principal andinterest, with interest upon the overdue principal, and, to the extent paymentat such rate of interest shall be legally enforceable, interest upon overdueinstallments of interest, at the applicable Note Interest Rate borne by theNotes of such Series, and in addition thereto will pay such further amount asshall be sufficient to cover the costs and expenses of collection, includingthe reasonable compensation, expenses, disbursements and advances of theIndenture Trustee and its agents and outside counsel.

 

(b)           Incase the Issuer shall fail forthwith to pay such amounts upon such demand, theIndenture Trustee, in its own name and as trustee of an express trust, mayinstitute a Proceeding for the collection of the sums so due and unpaid, andmay prosecute such Proceeding to judgment or final decree, and may enforce thesame against the Issuer or other obligor upon such Notes and collect in themanner provided by law out of the Collateral or the property of another obligorupon such Notes, wherever situated, the monies adjudged or decreed to bepayable in the manner provided by law.

 

(c)           Ifan Event of Default occurs and is continuing, the Indenture Trustee may, as moreparticularly provided in Section 5.05, in its discretion, proceed to protectand enforce its rights and the rights of the Noteholders of the affectedSeries, by such appropriate Proceedings as the Indenture Trustee shall deemmost effective to protect and enforce any such rights, whether for the specificenforcement of any covenant or agreement in this Indenture or in aid of theexercise of any power granted herein, or to enforce any other proper remedy orlegal or equitable right vested in the Indenture Trustee by this Indenture orby law.

 

(d)           Incase there shall be pending, relative to the Issuer or any other obligor uponthe Notes of the affected Series, or any Person having or claiming an ownershipinterest in the Collateral, Proceedings under Title 11 of the United StatesCode or any other applicable federal or state bankruptcy, insolvency or othersimilar law now or hereafter in effect, or in case a receiver, conservator,assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator,custodian or other similar official shall have been appointed for or takenpossession of the Issuer or its property or such other obligor or Person, or incase of any other comparable judicial Proceedings relative to the Issuer orother obligor upon the Notes of such Series, or to the creditors or property ofthe Issuer or such other obligor or Person, the Indenture Trustee, regardlessof whether the principal of any Notes shall then be due and payable as thereinexpressed or by declaration or otherwise and regardless of whether theIndenture Trustee shall have made any demand pursuant to the provisions of thisSection 5.04, shall be entitled and empowered, by intervention in suchProceedings or otherwise:

 

(i)            to file and prove a claim or claimsfor the whole amount of principal and interest owing and unpaid in respect ofthe Notes of such Series and to file such other papers or documents as may benecessary or advisable in order 

 

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to have the claims of the Indenture Trustee (includingany claim for reasonable compensation to the Indenture Trustee and eachpredecessor Indenture Trustee, and their respective agents, attorneys andcounsel, and for reimbursement of all expenses and liabilities incurred, and alladvances made, by the Indenture Trustee and each predecessor Indenture Trustee,except as a result of negligence, willful misconduct or bad faith) and of theNoteholders of such Series allowed in any Proceedings relative to the Issuer orother obligor on the Notes, or to the creditors or property of the Issuer orsuch other obligor;

 

(ii)           unless prohibited by applicable lawand regulations, to vote on behalf of the Holders of Notes of such Series inany election of a trustee, a standby trustee or a Person performing similarfunctions in any such Proceedings;

 

(iii)          to collect and receive any monies orother property payable or deliverable on any such claims and to distribute allamounts received with respect to the claims of the Noteholders of such Seriesand of the Indenture Trustee on their behalf; and

 

(iv)          to file such proofs of claim and otherpapers or documents as may be necessary or advisable in order to have theclaims of the Indenture Trustee or the Holders of Notes of such Series allowedin any judicial Proceedings relative to the Issuer, its creditors and itsproperty;

 

and any trustee, receiver, conservator, liquidator, custodian,assignee, sequestrator or other similar official in any such Proceeding ishereby authorized by each of such Noteholders to make payments to the IndentureTrustee, and, in the event that the Indenture Trustee shall consent to themaking of payments directly to such Noteholders, to pay to the IndentureTrustee such amounts as shall be sufficient to cover reasonable compensation tothe Indenture Trustee, each predecessor Indenture Trustee and their respectiveagents, attorneys and counsel, and all other expenses and liabilities incurred,and all advances made, by the Indenture Trustee and each predecessor IndentureTrustee except as a result of negligence, willful misconduct or bad faith.

 

(e)           Nothingherein contained shall be deemed to authorize the Indenture Trustee toauthorize or consent to or vote for or accept or adopt on behalf of anyNoteholder any plan of reorganization, arrangement, adjustment or compositionaffecting the Notes or the rights of any Holder thereof or to authorize theIndenture Trustee to vote in respect of the claim of any Noteholder in any suchproceeding except, as aforesaid, to vote for the election of a trustee inbankruptcy or similar Person.

 

(f)            Allrights of action and of asserting claims under this Indenture, or under any ofthe Notes, may be enforced by the Indenture Trustee without the possession ofany of the Notes or the production thereof in any trial or other Proceedingsrelative thereto, and any such action or Proceedings instituted by theIndenture Trustee shall be brought in its own name as trustee of an expresstrust, and any recovery of judgment, subject to the payment of the expenses,disbursements and compensation of the Indenture Trustee, each predecessorIndenture Trustee and their respective agents and attorneys, shall be for thebenefit of the Holders of the Notes of the affected Series as provided herein.

 

(g)           Inany Proceedings brought by the Indenture Trustee (except with respect to anyProceedings involving the interpretation of any provision of this Indenture towhich the 

 

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Indenture Trustee shall be a party), the Indenture Trustee shall beheld to represent all the Holders of the Notes of the affected Series, and itshall not be necessary to make any such Noteholder a party to any suchProceedings.

 

Section 5.05.          Remedies;Priorities.

 

(a)           Ifan Event of Default shall have occurred and be continuing with respect to anySeries, and the Notes of such Series have been accelerated pursuant to Section5.03, the Indenture Trustee may do one or more of the following (subject toSection 5.06):

 

(i)            institute Proceedings in its ownname and as trustee of an express trust for the collection of all amounts thenpayable on the Notes of the affected Series or under this Indenture withrespect thereto, whether by declaration or otherwise, enforce any judgmentobtained, and collect from the Issuer the portion of the Collateral allocatedto such Series and from any other obligor upon such Notes monies adjudged due;

 

(ii)           subject to the last paragraph of thissubsection 5.05(a), take any other appropriate action to protect and enforcethe rights and remedies of the Indenture Trustee and the Holders of the Notesof the affected Series; or

 

(iii)          causethe Issuer to sell Principal Receivables in an amount equal to the InvestedAmount with respect to the accelerated Series and the related Finance ChargeReceivables (or interests therein) in accordance with Section 5.16 hereof;

 

provided, however, that theIndenture Trustee may not exercise the remedy described in subparagraph (iii)above unless (A) the Holders of 100% of the Outstanding Amount of theNotes of the affected Series consent thereto, (B) the Indenture Trusteedetermines (based solely upon the opinion of an Independent investment bankingfirm obtained at the expense of the Issuer) that any proceeds of such exercisedistributable to the Noteholders of the affected Series will be at leastsufficient to discharge in full all amounts then due and unpaid upon such Notesfor principal and interest or (C) the Indenture Trustee determines (basedsolely upon the opinion of an Independent investment banking firm obtained atthe expense of the Issuer) that the Collateral may not continue to providesufficient funds for the payment of principal of and interest on the Notes asthey would have become due if the Notes had not been declared due and payable,and the Indenture Trustee obtains the consent of Holders of at least 66-2/3% ofthe Outstanding Amount of the Class A Notes (as such Notes may be designated inthe related Indenture Supplement) of such affected Series, or, if the Class ANotes have been paid in full, at least 66-2/3% of the outstanding principalamount of the Class B Notes (as such Notes may be designated in the relatedIndenture Supplement); provided that the Certificate Trustee as Holder,if applicable, shall vote in accordance with the provisions of the relevantPass-Through Trust Agreement.

 

The remedies provided in this Section 5.05(a) are theexclusive remedies provided to the Noteholders with respect to an Event ofDefault and each of the Noteholders (by its acceptance of their respectiveinterests in the Notes) and the Indenture Trustee hereby expressly waive anyother remedy that may be available under the applicable UCC.

 

(b)           Ifthe Indenture Trustee collects any money or property for a Series pursuant tothis Article V following the acceleration of the maturities of the Notesof such Series 

 

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pursuant to Section 5.03 (so long as such declaration shall not havebeen rescinded or annulled), it shall pay the money or property in thefollowing order:

 

FIRST:  to the Indenture Trustee and the NoteAdministrator for amounts due pursuant to Section 6.07 and to pay otherProgram Expenses under and in accordance with the related Indenture Supplement;

 

SECOND:  to the Servicer, the Servicing Fee under therelated Indenture Supplement;

 

THIRD:  to the Holders of the Class A Notes (as suchNotes may be designated in the related Indenture Supplement) of such Series foramounts due and unpaid on such Notes for interest and principal, according tothe amounts due and payable on such Class A Notes for interest and principal; providedthat, in the event there are sub-classes of Class A Notes, such Notes will bepaid sequentially with the most senior sub-class being paid first;

 

FOURTH: to the Holders ofthe Class B Notes (as such Notes may be designated in the related IndentureSupplement) of such Series for amounts due and unpaid on such Notes forinterest and principal, according to the amounts due and payable on such ClassB Notes for interest and principal;

 

FIFTH:  to the O/C Holder, if any, in accordancewith Article IV of the related Indenture Supplement; and

 

SIXTH:  to the Issuer for distribution pursuant toArticle IV of the related Indenture Supplement.

 

(c)           TheNote Administrator may, upon notification to the Issuer, fix a record date andpayment date for any payment to Noteholders of the affected Series pursuant tothis Section 5.05.  At least fifteen(15) days before such record date, the Note Administrator shall mail or send byfacsimile to each such Noteholder a notice that states the record date, thepayment date and the amount to be paid.

 

In addition to the applicationof money or property referred to in subsection 5.05(b) for an acceleratedSeries, amounts then held in the Collection Account or any Series Accounts forsuch Series and any amounts available under the Series Enhancement for suchSeries shall be used to make payments to the Holders of the Notes of suchSeries and the Series Enhancer for such Series in accordance with the terms ofthis Indenture, the related Indenture Supplement and the Series Enhancement forsuch Series.  Following the sale of theCollateral (or portion thereof) for a Series and the application of theproceeds of such sale to such Series and the application of the amounts thenheld in the Collection Account and any Series Accounts for such Series as areallocated to such Series and any amounts available under the Series Enhancementfor such Series, such Series shall no longer be entitled to any allocation ofCollections or other property constituting the Collateral under this Indentureand the Notes of such Series shall no longer be Outstanding.

 

Section 5.06.          OptionalPreservation of the Collateral  Ifthe Notes of any Series have been declared to be due and payable under Section5.03 following an Event of Default and such declaration and its consequenceshave not been rescinded and annulled, and the Indenture Trustee has notreceived directions from the Noteholders pursuant to Section 5.12, the 

 

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Indenture Trustee may, but need not, elect to maintain possession ofthe portion of the Collateral allocated to such Notes.  It is the desire of the parties hereto andthe Noteholders that there be at all times sufficient funds for the payment ofprincipal of and interest on the Notes, and the Indenture Trustee shall takesuch desire into account when determining whether or not to maintain possessionof the Collateral allocated to such Notes. In determining whether to maintain possession of the Collateral, theIndenture Trustee shall obtain (at the expense of the Issuer) and rely upon anopinion of an Independent investment banking or accounting firm of nationalreputation as to the feasibility of such proposed action and as to thesufficiency of the Collateral for such purpose.

 

Section 5.07.          Limitationon Suits.

 

No Noteholder shall have any right to institute anyProceedings, judicial or otherwise, with respect to this Indenture, or for theappointment of a receiver or trustee, or for any other remedy hereunder,unless:

 

(a)           theHolders of not less than 25% of the Outstanding Amount of any affected Seriesof Notes have made written request to the Indenture Trustee to institute suchProceeding in its own name as indenture trustee hereunder; provided thatthe Certificate Trustee as Holder, if applicable, shall vote in accordance withthe provisions of the relevant Pass-Through Trust Agreement;

 

(b)           suchNoteholder or Noteholders have previously given written notice to the IndentureTrustee of a continuing Event of Default;

 

(c)           suchNoteholder or Noteholders have agreed to provide to the Indenture Trusteeindemnity satisfactory to it against the costs, expenses and liabilities to beincurred in compliance with such request;

 

(d)           theIndenture Trustee for sixty (60) days after its receipt of such notice, requestand offer of indemnity has failed to institute any such Proceeding; and

 

(e)           nodirection inconsistent with such written request has been given to the IndentureTrustee during such 60-day period by the Majority Noteholders of such Series;

 

it being understood and intended that no one or more Noteholders of theaffected Series shall have any right in any manner whatever by virtue of, or byavailing of, any provision of this Indenture to affect, disturb or prejudicethe rights of any other Noteholders of such Series or to obtain or to seek toobtain priority or preference over any other Noteholders of such Series or toenforce any right under this Indenture, except in the manner herein provided.

 

In the event the Indenture Trustee shall receiveconflicting or inconsistent requests and indemnity from two (2) or more groupsof Noteholders of the affected Series, each representing less than a majorityof the Outstanding Amount of the Notes of such Series, the Indenture Trustee inits sole discretion may determine what action, if any, shall be taken,notwithstanding any other provisions of this Indenture.

 

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Section 5.08.          UnconditionalRights of Noteholders to Receive Principal and Interest.

 

Notwithstanding any other provision in this Indenture,each Holder of a Note shall have the right which is absolute and unconditionalto receive payment of the principal of and interest in respect of such Note assuch principal and interest becomes due and payable and to institute suit forthe enforcement of any such payment, and such right shall not be impairedwithout the consent of such Noteholder.

 

Section 5.09.          Restorationof Rights and Remedies.

 

If the Indenture Trustee or any Noteholder hasinstituted any Proceeding to enforce any right or remedy under this Indentureand such Proceeding has been discontinued or abandoned, or has been determinedadversely to the Indenture Trustee or to such Noteholder, then and in everysuch case the Issuer, the Indenture Trustee and the Noteholder shall, subjectto any determination in such Proceeding, be restored severally and respectivelyto their former positions hereunder, and thereafter all rights and remedies ofthe Indenture Trustee and the Noteholders shall continue as though no suchProceeding had been instituted.

 

Section 5.10.          Rightsand Remedies Cumulative.

 

No right, remedy, power or privilege herein conferredupon or reserved to  the IndentureTrustee or to the Noteholders or the O/C Holder is intended to be  exclusive of any other right, remedy, poweror privilege, and every right, remedy, power or privilege shall, to the extentpermitted by law, be cumulative.  Theassertion or exercise of any right or remedy shall not preclude any otherfurther assertion or the exercise of any other appropriate right or remedy.

 

Section 5.11.          Delayor Omission Not Waiver.

 

No failure to exercise and no delay in exercising, onthe part of the Indenture Trustee or of any Noteholder or other Person, anyright or remedy occurring hereunder upon any Event of Default shall impair anysuch right or remedy or constitute a waiver thereof of any such Event ofDefault or an acquiescence therein. Every right and remedy given by this Article V may be exercised fromtime to time, and as often as may be deemed expedient, by the Indenture Trusteeor by the Noteholders, as the case may be.

 

Section 5.12.          Rightsof Noteholders to Direct Indenture Trustee.

 

The Controlling Noteholders of any affected Series (ifan Event of Default with respect to such Series has occurred and is continuing)shall have the right to direct the time, method and place of conducting anyProceeding for any remedy available to the Indenture Trustee with respect tothe Notes of such Series or exercising any trust or power conferred on theIndenture Trustee with respect to the Notes of such Series; provided, however,that subject to Section 6.01:

 

(a)           the Indenture Trustee shall have theright to decline any such direction if the Indenture Trustee, after beingadvised by counsel, determines that the action so directed is in conflict withany rule of law or with this Indenture, and

 

(b)           the Indenture Trustee shall have theright to decline any such direction if the Indenture Trustee in good faithshall, by a Responsible Officer of the Indenture 

 

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Trustee, determine that the Proceedings so directedwould be illegal or involve the Indenture Trustee in personal liability or beunjustly prejudicial to the Noteholders not parties to such direction.

 

Section 5.13.          Waiverof Past Defaults.

 

Prior to the declaration of the acceleration of thematurity of the Notes of the affected Series as provided in Section 5.03, theControlling Noteholders of such Series may, on behalf of all such Noteholders,waive in writing any past default with respect to such Notes and itsconsequences, except a default:

 

(a)           in the payment of the principal orinterest in respect of any Note of such Series; or

 

(b)           in respect of a covenant or provisionhereof that under Section 10.02 hereof cannot be modified or amended withoutthe consent of the Noteholder of each Outstanding Note of such Series affected.

 

Upon any such written waiver, such default shall ceaseto exist, and any Event of Default arising therefrom shall be deemed to havebeen cured, for every purpose of this Indenture; but no such waiver shallextend to any subsequent or other default or impair any right consequentthereon.

 

Section 5.14.          Undertakingfor Costs.

 

All parties to this Indenture agree, and eachNoteholder by its acceptance thereof shall be deemed to have agreed, that anycourt may in its discretion require, in any suit for the enforcement of anyright or remedy under this Indenture, or in any suit against the IndentureTrustee for any action taken, suffered or omitted by it as Indenture Trustee,the filing by any party litigant in such suit of an undertaking to pay thecosts of such suit, and that such court may in its discretion assess reasonablecosts, including reasonable attorneys’ fees and expenses, against any partylitigant in such suit, having due regard to the merits and good faith of theclaims or defenses made by such party litigant; but the provisions of thisSection 5.14 shall not apply to any suit instituted by the Indenture Trustee,to any suit instituted by any Noteholder, or group of Noteholders (incompliance with Section 5.07 hereof), holding in the aggregate more than 10% ofthe principal balance of the Outstanding Notes of the affected Series, or toany suit instituted by any Noteholder for the enforcement of the payment of theprincipal or interest in respect of any Note on or after the Distribution Dateon which any of such amounts was due pursuant to the terms of such Note or theapplicable Indenture Supplement (or, in the case of redemption, on or after theapplicable Redemption Date); provided that the Certificate Trustee asHolder, if applicable, shall vote in accordance with the provisions of therelevant Pass-Through Trust Agreement.

 

Section 5.15.          Waiverof Stay or Extension Laws.

 

The Issuer covenants (to the extent that it maylawfully do so) that it will not at any time insist upon, or plead, or in anymanner whatsoever claim or take the benefit or advantage of, any stay orextension law wherever enacted, now or at any time hereafter in force, whichmay adversely affect the covenants or the performance of this Indenture; andthe Issuer (to the extent that it may lawfully do so) hereby expressly waivesall benefit or advantage of any such law, and covenants that it will nothinder, delay or impede the execution of any power herein 

 

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granted to the Indenture Trustee, but will suffer and permit theexecution of every such power as though no such law had been enacted.

 

Section 5.16.          Saleof Receivables.

 

(a)           Themethod, manner, time, place and terms of any sale of Receivables (or intereststherein) pursuant to Section 5.05(a)(iii) shall be commerciallyreasonable.  The Indenture Trustee mayfrom time to time postpone any sale by public announcement made at the time andplace of such sale.  The IndentureTrustee hereby expressly waives its right to any amount fixed by law as compensationfor any sale.

 

(b)           TheIndenture Trustee is hereby irrevocably appointed the agent andattorney-in-fact of the Issuer in connection with any sale of Receivablespursuant to Section 5.05(a)(iii).  Nopurchaser or transferee at any such sale shall be bound to ascertain theIndenture Trustee’s authority, inquire into the satisfaction of any conditionsprecedent or see to the application of any monies.

 

(c)           In its exercise of the foreclosure remedypursuant to Section 5.05(a)(iii), the Indenture Trustee shall solicit bids fromPermitted Assignees for the sale ofPrincipal Receivables in an amount at least equal to the Invested Amount withrespect to the affected Series of Notes at the time of sale and the relatedFinance Charge Receivables (or interests therein).  The Indenture Trustee shall sell such Receivables (or intereststherein) to the bidder with the highest cash purchase offer.  The Transferor, its Affiliates or agents maynot participate or bid in such sale. The proceeds of any such sale shall be applied in accordance withSection 5.05(b).

 

Section 5.17.          Actionon Notes.

 

The Indenture Trustee’s right to seek and recoverjudgment on the Notes or under this Indenture shall not be affected by theseeking or obtaining of or application for any other relief under or withrespect to this Indenture.  Neither theLien of this Indenture nor any rights or remedies of the Indenture Trustee orthe Noteholders shall be impaired by the recovery of any judgment by the IndentureTrustee against the Issuer or by the levy of any execution under such judgmentupon any portion of the Collateral or upon any of the assets of theIssuer.  Any money or property collectedby the Indenture Trustee shall be applied as specified in the applicableIndenture Supplement.

 

ARTICLE VI

 

THE INDENTURE TRUSTEE;THE NOTE ADMINISTRATOR

 

Section 6.01.          Noticeof Defaults.  As promptly aspracticable after, and in any event within 30 days after, the occurrence of anyRedemption Event of Event of Default of which a Responsible Officer of theIndenture Trustee has actual knowledge hereunder, the Indenture Trustee shallmail to the Noteholders and the Rating Agencies, notice of such defaulthereunder actually known to a Responsible Officer of the Indenture Trustee,unless such default shall have been cured or waived.

 

Section 6.02.          CertainRights of Indenture Trustee and Note Administrator.

 

(a)           theIndenture Trustee, prior to the occurrence of an Event of Default of which aResponsible Officer of the Indenture Trustee shall have actual knowledge andafter the 

 

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curing of all such Events of Defaults which may have occurred,undertakes to perform such duties and only such duties as are specifically setforth in this Indenture.  If an Event ofDefault of which a Responsible Officer of the Indenture Trustee shall haveactual knowledge has occurred and has not been cured or waived, the IndentureTrustee shall exercise such of the rights and powers vested in it by thisIndenture, and use the same degree of care and skill in their exercise, as aprudent person would exercise or use under the circumstances in the conduct ofsuch person’s own affairs;

 

(b)           theIndenture Trustee and the Note Administrator, upon receipt of all resolutions,certificates, statements, opinions, reports, documents, orders, or otherinstruments furnished to it which are specifically required to be furnishedpursuant to any provision of this Indenture or any Indenture Supplement, shallexamine them to determine whether they conform to the requirements of thisIndenture and such Indenture Supplement; provided, however, thatneither the Indenture Trustee nor the Note Administrator shall be responsiblefor the accuracy or content of any resolution, certificate, statement, opinion,report, document, order or other instrument furnished by the Servicer, theLLCs, the O/C Holders, the Issuer or any other party hereunder.  If any such instrument is found not toconform in any material respect to the requirements of this Indenture or anyIndenture Supplement, the Indenture Trustee shall notify the Noteholders ofsuch instrument in the event that the Indenture Trustee, after so requesting,does not receive a satisfactorily corrected instrument;

 

(c)           theIndenture Trustee and the Note Administrator undertake to perform only suchduties as are specifically set forth in this Indenture and any IndentureSupplements to which they are a party. No implied covenants or obligations shall be read into this Indenture orsuch Indenture Supplements against the Indenture Trustee or the NoteAdministrator and, in the absence of bad faith on the part of the IndentureTrustee or the Note Administrator, as the case may be, the Indenture Trusteeand the Note Administrator may conclusively rely, as to the truth of thestatements and the correctness of the opinions expressed therein, upon anycertificates or opinions furnished to the Indenture Trustee and conforming tothe requirements of this Indenture and such Indenture Supplement, asapplicable;

 

(d)           theIndenture Trustee and the Note Administrator may rely and shall be protected inacting or refraining from acting in reliance upon any resolution, certificate,statement, instrument, opinion, report, notice, request, direction, consent,order, bond, debenture or other paper or document believed by it to be genuineand to have been signed or presented by the proper party or parties;

 

(e)           anyrequest or direction of the Issuer mentioned herein shall be sufficientlyevidenced by an Issuer Order or Issuer Request;

 

(f)            wheneverin the administration of this Indenture or any Indenture Supplement theIndenture Trustee or the Note Administrator shall deem it desirable that amatter be proved or established prior to taking, suffering or omitting anyaction hereunder or thereunder, the Indenture Trustee and the NoteAdministrator (unless other evidence be herein specifically prescribed) shallbe entitled to receive and may, in the absence of bad faith on its part, relyupon an Officer’s Certificate of the Issuer;

 

(g)           theIndenture Trustee and the Note Administrator may consult with counsel and theadvice of such counsel or any Opinion of Counsel shall be full and completeauthorization and protection in respect of any action taken, suffered oromitted by it hereunder in good faith and in reliance thereon;

 

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(h)           subjectto the duty of the Indenture Trustee during the continuance of an Event ofDefault to act with the required standard of care, neither the Indenture Trusteenor the Note Administrator shall be under any obligation to exercise any of therights or powers vested in it by this Indenture at the request or direction ofany of the Noteholders pursuant to this Indenture or any Indenture Supplement,unless such Noteholders shall have offered to the Indenture Trustee security orindemnity reasonably satisfactory to it against the cost, expenses andliabilities which might be incurred by it in compliance with such request ordirection;

 

(i)            neitherthe Indenture Trustee nor the Note Administrator shall be bound to make anyinvestigation into the facts or matters stated in any resolution, certificate,statement, instrument, opinion, report, notice, request, direction, consent,order, bond, debenture or other paper or document;

 

(j)            theIndenture Trustee and the Note Administrator may execute any of the trusts orpowers under this Indenture or any Indenture Supplement or perform any dutiesunder this Indenture or any Indenture Supplement either directly or by or throughagents, attorneys, custodians or nominees and neither the Indenture Trustee northe Note Administrator shall be responsible for any misconduct or negligence onthe part of, or for the supervision of, any agent, attorney, custodian ornominee appointed with due care by it under this Indenture or any IndentureSupplement;

 

(k)           theIndenture Trustee and the Note Administrator shall not be liable in theirindividual capacities with respect to any action taken or omitted to be takenby it in good faith in accordance with this Indenture, any Indenture Supplementor at the direction of the Majority Noteholders of an outstanding Series ofNotes relating to the time, method and place of conducting any proceeding forany remedy available to the Indenture Trustee, or exercising any trust or powerconferred upon the Indenture Trustee or the Note Administrator, under thisIndenture or the related Indenture Supplement;

 

(l)            neitherthe Indenture Trustee nor the Note Administrator shall be required to expend orrisk its own funds in the performance of any of its duties under this Indentureor any Indenture Supplement, or in the exercise of any of its rights or powers,if it shall have reasonable grounds for believing that repayment of such fundsor adequate indemnity against such risk is not reasonably assured to it andnone of the provisions contained in this Indenture or any Indenture Supplementshall in any event require the Indenture Trustee or the Note Administrator toperform, or be responsible for the manner of performance of, any of theobligations of the Servicer, the Issuer, [CSG/Presidio], LLC or any other partyunder any of the Transaction Documents;

 

(m)          whenthe Indenture Trustee incurs expenses or renders services in connection with anEvent of Default specified in Section 5.02, such expenses (including the feesand expenses of its counsel) and the compensation for such services areintended to constitute expenses of administration under any bankruptcy law orlaw relating to creditors rights generally;

 

(n)           neitherthe Indenture Trustee nor the Note Administrator shall be charged withknowledge of a default or an Event of Default or Redemption Event unless aResponsible Officer obtains actual knowledge of such default, event, Event ofDefault or Redemption Event; in the absence of the receipt of such notice, theIndenture Trustee and the Note Administrator may conclusively assume that thereis no default, event, Event of Default or Redemption Event;

 

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(o)           inthe event the Indenture Trustee or the Note Administrator is also acting as thePaying Agent or an Authenticating Agent, the rights, powers, immunities andindemnifications afforded to the Indenture Trustee and the Note Administratorhereunder shall also be afforded to such Paying Agent or Authenticating Agent;

 

(p)           neitherthe Indenture Trustee nor the Note Administrator shall be liable in itsindividual capacity for an error of judgment made in good faith by one of theirResponsible Officers or other officers, unless it shall be proved that theIndenture Trustee or the Note Administrator, as the case may be, was negligentin ascertaining the pertinent facts;

 

(q)           neitherthe Indenture Trustee nor the Note Administrator shall have any duty (i) to seeto any recording, filing, or depositing of this Indenture or any agreementreferred to herein or any financing statement or continuation statementevidencing a security interest, or to see to the maintenance of any suchrecording or filing or depositing or to any recording, refiling or redepositingof any thereof, (ii) to see to any insurance or (iii) to provide or maintainthe payment or discharge of any tax, assessment, or other governmental chargeor any lien or encumbrance of any kind owing with respect to, assessed orlevied against, any part of the Collateral;

 

(r)            neitherthe Indenture Trustee nor the Note Administrator shall be personally liable forany action taken, suffered or omitted by it in good faith and believed by it tobe authorized or within the discretion or rights or powers conferred upon it bythis Indenture or any Indenture Supplement;

 

(s)           theright of the Indenture Trustee and the Note Administrator to perform anydiscretionary act enumerated in this Indenture or any Indenture Supplementshall not be construed as a duty, and neither the Indenture Trustee nor theNote Administrator shall be answerable other than for its negligence or willfulmisconduct in the performance of such act; and

 

(t)            neitherthe Indenture Trustee nor the Note Administrator shall be required to give anybond or surety in respect of the execution of any of the trusts created herebyor the powers granted hereunder.

 

Section 6.03.          [Reserved].

 

Section 6.04.          NotResponsible for Recitals or Issuance of Notes.

 

The recitals contained herein and in the Notes, exceptthe certificate of authentication of the Indenture Trustee, shall be taken asthe statements of the Issuer, and neither the Indenture Trustee nor the NoteAdministrator assumes any responsibility for their correctness.  Neither the Indenture Trustee nor the NoteAdministrator makes any representation as to the validity or sufficiency of theAgreement, the Notes, the Transaction Documents, the Receivables or any relateddocument.  Neither the Indenture Trusteenor the Note Administrator shall be accountable for the use or application bythe Issuer of the proceeds from the Notes.

 

Section 6.05.          MayHold Notes.

 

The Indenture Trustee, the Note Administrator, anyPaying Agent, Transfer Agent and Registrar or any other agent of the Issuer, inits individual or any other capacity, may become the owner or pledgee of Notesand may otherwise deal with the Issuer with the same 

 

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rights it would have if it were not Indenture Trustee, the NoteAdministrator, Paying Agent, Transfer Agent and Registrar or such other agent.

 

Section 6.06.          MoneyHeld in Trust.

 

Money held by the Indenture Trustee or the NoteAdministrator in trust hereunder need not be segregated from other funds heldby such entity in trust hereunder except to the extent required herein orrequired by law.  Neither the IndentureTrustee nor the Note Administrator shall be under any liability for interest onany money received by it hereunder except as otherwise agreed upon in writingby the Indenture Trustee and the Issuer.

 

Section 6.07.          Compensation,Reimbursement and Indemnification.

 

The Issuer shall pay to the Indenture Trustee, theNote Administrator, the Certificate Trustee and the Certificate Administrator,from time to time, reasonable compensation for all services rendered by theIndenture Trustee, the Note Administrator, the Certificate Trustee and theCertificate Administrator, as applicable, under the Transaction Documents orthe Pass-Through Trust Agreement, as applicable (which compensation shall notbe limited by any law on compensation of a trustee of an express trust).  The Issuer shall reimburse the IndentureTrustee, the Note Administrator, the Certificate Trustee or the CertificateAdministrator for all of their respective reasonable out-of-pocket expensesincurred or made, including costs of collection, in addition to thecompensation for its services.  Suchexpenses shall include the reasonable compensation and expenses, disbursementsand advances of the Indenture Trustee’s, the Note Administrator’s, theCertificate Trustee’s and the Certificate Administrator’s agents, counsel,accountants and experts, except any such expense, disbursement or advance asmay arise from the such parties’ negligence, willful misconduct or badfaith.  The Issuer shall indemnify, andshall cause CSG, LLC to indemnify, each of the Indenture Trustee, the NoteAdministrator, the Certificate Trustee and the Certificate Administrator andtheir respective officers, directors, agents and employees against any and allloss, liability or expense (including the fees of either in-house counsel oroutside counsel, but not both) incurred by it in connection with theadministration of this trust and the performance of their duties under theTransaction Documents or the Pass-Through Trust Agreement, as applicable.  Each of the Indenture Trustee, the NoteAdministrator, the Certificate Trustee and the Certificate Administrator shallnotify the Issuer promptly of any claim for which it may seek indemnity.  Failure by any such party to so notify theIssuer shall not relieve the Issuer of its obligations hereunder unless suchloss, liability or expense could have been avoided with such prompt notificationand then only to the extent of such loss, expense or liability which could havebeen so avoided.  The Indenture Trustee,the Note Administrator, the Certificate Trustee and the CertificateAdministrator may have separate counsel and, if they do, the Issuer shall paythe fees and expenses of such counsel.

 

The amount of compensation, reimbursement andindemnification due to the Indenture Trustee and the Note Administrator shallbe as set forth in each Indenture Supplement.

 

The Issuer’s payment obligations to the IndentureTrustee, the Note Administrator, the Certificate Trustee and the CertificateAdministrator, as the case may be pursuant to this Section 6.07 shall survivethe discharge of this Indenture.  Whenthe Indenture Trustee, the Note Administrator, the Certificate Trustee or theCertificate Administrator incurs expenses after the occurrence of a Defaultspecified in subsection 5.02(d) or (e) with respect to the Issuer, the expensesare intended to constitute expenses of administration under Title 11 of theUnited States Code or any other applicable federal or state bankruptcy,insolvency or similar law.

 

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Notwithstanding anything herein to the contrary, theIndenture Trustee’s right to enforce any of the Issuer’s payment obligationspursuant to this Section 6.07 shall be subject to the provisions of Sections12.14 and 12.15.

 

Section 6.08.          Replacementof Indenture Trustee and Note Administrator.

 

No resignation or removal of the Indenture Trustee orNote Administrator and no appointment of a successor Indenture Trustee orsuccessor Note Administrator shall become effective until the acceptance ofappointment by the successor Indenture Trustee or successor Note Administratorpursuant to this Section 6.08. The Indenture Trustee or the Note Administratormay resign at any time by giving thirty (30) days written notice to the Issuerand the O/C Holder.  The MajorityNoteholders, upon delivery of notice of such removal to the Issuer, may removethe Indenture Trustee or the Note Administrator by so notifying the IndentureTrustee or Note Administrator and may appoint a successor Indenture Trustee orsuccessor Note Administrator, as the case may be.  The Issuer may remove the Indenture Trustee or NoteAdministrator, as the case may be, if:

 

(i)            the Indenture Trustee or NoteAdministrator fails to comply with Section 6.11;

 

(ii)           the Indenture Trustee or NoteAdministrator is adjudged a bankrupt or insolvent;

 

(iii)          a receiver of the Indenture Trustee orNote Administrator or of such entity’s property shall be appointed, or anypublic officer takes charge of the Indenture Trustee or Note Administrator orof such entity’s property or affairs for the purpose of rehabilitation,conservation or liquidation; or

 

(iv)          the Indenture Trustee or Note Administratorotherwise becomes legally unable to act.

 

If the Indenture Trustee or Note Administrator resignsor is removed or if a vacancy exists in the office of Indenture Trustee or NoteAdministrator for any reason (the Indenture Trustee in such event beingreferred to herein as the retiring Indenture Trustee and the Note Administratorin such event being referred to herein as the retiring Note Administrator), theIssuer shall promptly appoint a successor Indenture Trustee or NoteAdministrator, as the case may be.  TheIssuer shall furnish each Rating Agency with a copy of any notice ofresignation or removal of a retiring Indenture Trustee or retiring NoteAdministrator pursuant to this Section 6.08 promptly after receiving suchnotice, in the case of a resignation by a retiring Indenture Trustee orretiring Note Administrator, or delivering such notice, in the case of aremoval of a retiring Indenture Trustee or retiring Note Administrator by theIssuer.

 

A successor Indenture Trustee or successor NoteAdministrator shall deliver a written acceptance of its appointment to theretiring Indenture Trustee or retiring Note Administrator, as the case may be,the Administrator and the Issuer. Thereupon the resignation or removal of the retiring Indenture Trusteeor retiring Note Administrator shall become effective, and the successorIndenture Trustee or successor Note Administrator shall have all the rights,powers and duties of the Indenture Trustee or Note Administrator under thisIndenture.  The successor IndentureTrustee or successor Note Administrator shall mail a notice of its successionto all of the Noteholders, the O/C Holder and each Rating Agency.  The retiring Indenture Trustee 

 

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or retiring Note Administrator shall promptly transfer all propertyheld by it as Indenture Trustee or Note Administrator to the successorIndenture Trustee or successor Note Administrator.

 

If a successor Indenture Trustee or a successor NoteAdministrator does not take office within sixty (60) days after the retiringIndenture Trustee or the retiring Note Administrator resigns or is removed, theretiring Indenture Trustee or retiring Note Administrator, as the case may be,the Issuer or the Majority Noteholders may petition any court of competentjurisdiction for the appointment of a successor Indenture Trustee or successorNote Administrator.

 

If the Indenture Trustee or the Note Administratorfails to comply with Section 6.11, any Noteholder may petition any court of competentjurisdiction for the removal of the Indenture Trustee or the Note Administratorand the appointment of a successor Indenture Trustee or a successor NoteAdministrator, as the case may be.

 

Notwithstanding the replacement of the IndentureTrustee or the Note Administrator pursuant to this Section 6.08, the Issuer’sobligations under Section 6.07 shall continue for the benefit of the retiringIndenture Trustee or the retiring Note Administrator.

 

Section 6.09.          SuccessorIndenture Trustee or Successor Note Administrator by Merger.

 

If the Indenture Trustee or the Note Administratorconsolidates with, merges or converts into, or transfers all or substantiallyall its corporate trust business or assets to, another corporation or bankingassociation, the resulting, surviving or transferee corporation or bankingassociation without any further act shall be the successor Indenture Trustee orthe successor Note Administrator, as the case may be; provided that suchcorporation or banking association shall be otherwise qualified and eligibleunder Section 6.11.  The IndentureTrustee or Note Administrator, as the case may be, shall provide the RatingAgencies prior written notice of any such transaction.

 

In case at the time such successor or successors bymerger, conversion, consolidation or transfer to the Indenture Trustee shallsucceed to the trusts created by this Indenture any of the Notes shall havebeen authenticated but not delivered, any such successor to the IndentureTrustee may adopt the certificate of authentication of any predecessorIndenture Trustee and deliver such Notes so authenticated; and in case at thattime any of the Notes shall not have been authenticated, any successor to theIndenture Trustee may authenticate such Notes in the name of the successor tothe Indenture Trustee; and in all such cases such certificates shall have thefull force which it is anywhere in the Notes or in this Indenture provided thatthe certificate of the Indenture Trustee shall have.

 

Section 6.10.          Appointmentof Co-Indenture Trustee or Separate Indenture Trustee.

 

(a)           Notwithstandingany other provisions of this Indenture, at any time, for the purpose of meetingany legal requirement of any jurisdiction in which any part of the Collateralmay at the time be located, the Indenture Trustee shall have the power and mayexecute and deliver all instruments to appoint one or more Persons to act as aco-trustee or co-trustees, or separate trustee or separate trustees, of all orany part of the Collateral, and to vest in such Person or Persons, in suchcapacity and for the benefit of the Noteholders, such title to the Collateral,or any part hereof, and, subject to the other provisions of this Section 6.10,such powers, duties, obligations, rights and trusts as the Indenture Trusteemay consider necessary or desirable.  No

 

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co-trustee or separate trustee hereunder shall be required to meet theterms of eligibility as a successor trustee under Section 6.11 and no notice toNoteholders of the appointment of any co-trustee or separate trustee shall berequired under Section 6.08 hereof.  Theappointment of any co-trustee or separate trustee shall not absolve theIndenture Trustee of its obligations under this Indenture and the relatedIndenture Supplement.

 

(b)           Everyseparate trustee and co-trustee shall, to the extent permitted by law, beappointed and act subject to the following provisions and conditions:

 

(i)            all rights, powers, duties andobligations conferred or imposed upon the Indenture Trustee shall be conferredor imposed upon and exercised or performed by the Indenture Trustee and suchseparate trustee or co-trustee jointly (it being understood that such separatetrustee or co-trustee is not authorized to act separately without the IndentureTrustee joining in such act), except to the extent that under any law of anyjurisdiction in which any particular act or acts are to be performed theIndenture Trustee shall be incompetent or unqualified to perform such act or acts,in which event such rights, powers, duties and obligations (including theholding of title to the Collateral or any portion thereof in any suchjurisdiction) shall be exercised and performed singly by such separate trusteeor co-trustee, but solely at the direction of the Indenture Trustee;

 

(ii)           no trustee hereunder shall bepersonally liable by reason of any act or omission of any other trusteehereunder; and

 

(iii)          the Indenture Trustee may at any timeaccept the resignation of or remove any separate trustee or co-trustee.

 

(c)           Anynotice, request or other writing given to the Indenture Trustee shall be deemedto have been given to each of the then separate trustees and co-trustees, aseffectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shallrefer to this Indenture and the conditions of this Section 6.10.  Each separate trustee and co-trustee, uponits acceptance of the trusts conferred, shall be vested with the estates orproperty specified in its instrument of appointment, either jointly with theIndenture Trustee or separately, as may be provided therein, subject to all thepro­visions of this Indenture, specifically including every provision of thisIndenture relating to the conduct of, affecting the liability of, or affordingprotection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee.

 

(d)           Anyseparate trustee or co-trustee may at any time constitute the IndentureTrustee, its agent or attorney-in-fact with full power and authority, to theextent not prohibited by law, to do any lawful act under or in respect of thisIndenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable ofacting, resign or be removed, all of its estates, properties, rights, remediesand trusts shall vest in and be exercised by the Indenture Trustee, to theextent permitted by law, without the appointment of a new or successor trustee.

 

Section 6.11.          Eligibility;Disqualification.

 

The Indenture Trustee and Note Administrator eachshall have a combined capital and surplus of at least $50,000,000 as set forthin its most recent published annual report of condition and its long-termunsecured debt shall be rated at least “Baa3” by Moody’s, at least “BBB-” byStandard & Poor’s and subject to supervision or examination by Federal orstate 

 

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authority.  If such corporationpublishes reports of condition at least annually, pursuant to law or to therequirements of the aforesaid supervising or examining authority, then for thepurposes of this Section 6.11, the combined capital and surplus of suchcorporation shall be deemed to be its combined capital and surplus as set forthin its most recent report of condition so published.  If at any time the Indenture Trustee or the Note Administratorshall cease to be eligible in accordance with the provisions of this Section6.11, such entity shall resign immediately in the manner and with the effect hereinafterspecified in this Article VI.

 

Section 6.12.          TaxReturns.

 

In the event the Trust shall be required to file taxreturns, the Servicer shall prepare or shall cause to be prepared such taxreturns and shall provide such tax returns to the Owner Trustee for signatureat least five (5) days before such tax returns are due to be filed.  The Servicer, in accordance with the termsof each Indenture Supplement, shall also prepare or shall cause to be preparedall tax information required by law to be distributed to Noteholders and theO/C Holder and shall deliver such information to the Owner Trustee, theIndenture Trustee and the Note Administrator at least five (5) days prior tothe date it is required by law to be distributed to Noteholders and the O/CHolder.  The Owner Trustee, upon writtenrequest, will furnish the Servicer with all such information known to the OwnerTrustee as may be reasonably requested and required in connection with thepreparation of all tax returns of the Trust, and shall, upon request, executesuch returns.  In no event shall theOwner Trustee be personally liable for any liabilities, costs or expenses ofthe Trust, any Noteholder or the O/C Holder arising under any tax law,including without limitation, federal, state or local income or excise taxes orany other tax imposed on or measured by income (or any interest or penalty withrespect thereto arising from a failure to comply therewith).

 

Section 6.13.          Representationsand Covenants of the Indenture Trustee and the Note Administrator.

 

(a)           TheIndenture Trustee represents, warrants and covenants that:

 

(i)            The Indenture Trustee is a nationalbanking association;

 

(ii)           The Indenture Trustee has full powerand authority to deliver and perform this Indenture and has taken all necessaryaction to authorize the execution, delivery and performance by it of thisIndenture and the other Transaction Documents to which it is a party; and

 

(iii)          Each of this Indenture and the otherTransaction Documents to which it is a party has been duly executed anddelivered by the Indenture Trustee and constitutes its legal, valid and bindingobligation in accordance with its terms.

 

(b)           TheNote Administrator represents, warrants and covenants that:

 

(i)            The Note Administrator is a nationalassociation;

 

(ii)           The Note Administrator has full powerand authority to deliver and perform this Indenture and has taken all necessaryaction to authorize the execution, delivery and performance by it of thisIndenture and the other Transaction Documents to which it is a party; and

 

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(iii)          Each of this Indenture and the otherTransaction Documents to which it is a party has been duly executed anddelivered by the Note Administrator and constitutes its legal, valid andbinding obligation in accordance with its terms.

 

Section 6.14.          Custodyof the Collateral.

 

The Note Administrator, on behalf of the IndentureTrustee, shall hold a CD-Rom consisting of a schedule of the Receivables andthe Trust Accounts and all instruments, deposit accounts, negotiable documents,money, goods, letters of credit, and advices of credit constituting a partthereof in the State of New York.  TheNote Administrator, on behalf of the Indenture Trustee, shall hold such of theCollateral as constitutes investment property through a securitiesintermediary, which securities intermediary shall agree with the NoteAdministrator, on behalf of the Indenture Trustee, that (a) such investmentproperty shall at all times be credited to a securities account of theIndenture Trustee, (b) such securities intermediary shall treat the NoteAdministrator, on behalf of the Indenture Trustee, as entitled to exercise therights that comprise each financial asset credited to such securities account,(c) all property credited to such securities account shall be treated asfinancial assets, (d) such securities intermediary shall comply withentitlement orders originated by the Note Administrator, on behalf of theIndenture Trustee, without the further consent of any other person or entity,(e) such securities intermediary shall not agree with any person or entityother than the Note Administrator, on behalf of the Indenture Trustee, tocomply with entitlement orders originated by any person or entity other than theNote Administrator, on behalf of the Indenture Trustee, (f) such securitiesaccounts and the property credited thereto shall not be subject to any lien,security interest, right of set-off, or encumbrance in favor of such securitiesintermediary or anyone claiming through it (other than the Indenture Trustee),(g) such agreement shall be governed by the laws of the State of New York,and (h) such securities intermediary’s jurisdiction for purposes of the UCCshall be with the State of New York. Terms used in this Section 6.14 that are defined in the New YorkUCC and not otherwise defined herein shall have the meaning set forth in theNew York UCC. Except as permitted by this Section 6.14, the Indenture Trusteeshall not hold any part of the Collateral through an agent or a nominee.

 

ARTICLE VII

 

NOTEHOLDERS’ LIST ANDREPORTS BY INDENTURE TRUSTEE AND ISSUER

 

Section 7.01.          Issuerto Furnish Indenture Trustee Names and Addresses of Noteholders.

 

The Issuer will furnish or cause to be furnished tothe Indenture Trustee and the Note Administrator (a) upon each transfer of aNote, a list, in such form as the Indenture Trustee and the Note Administratormay reasonably require, of the names, addresses and taxpayer identificationnumbers of the Noteholders as they appear on the Note Register as of the mostrecent Record Date, and (b) at such other times, as the Indenture Trustee andthe Note Administrator may request in writing, within five (5) Business Daysafter receipt by the Issuer of any such request, a list of similar form andcontent as of a date not more than ten (10) days prior to the time such list isfurnished; provided, however, that for so long as the Note  Administrator is the Transfer Agent andRegistrar, no such list shall be required to be furnished.

 

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Section 7.02.          Preservationof Information; Communications to Noteholders.

 

The Note Administrator shall preserve, in as current aform as is reasonably practicable, the names and addresses of the Noteholderscontained in the most recent list furnished to the Note Administrator asprovided in Section 2.09 or 7.01 and the names, addresses and taxpayeridentification numbers of the Noteholders received by the Note Administrator inits capacity as Transfer Agent and Registrar. The Note Administrator may destroy any list furnished to it as providedin Section 2.09 or 7.01 upon receipt of a new list so furnished.

 

ARTICLE VIII

 

ALLOCATION ANDAPPLICATION OF COLLECTIONS

 

Section 8.01.          Collectionof Money.

 

Except as otherwise expressly provided herein and inthe related Indenture Supplement, the Indenture Trustee and the NoteAdministrator may demand payment or delivery of, and shall receive and collect,directly and without intervention or assistance of any fiscal agent or otherintermediary, all money and other property payable to or receivable by theIndenture Trustee and/or the Note Administrator, as the case may be, pursuantto this Indenture.  The IndentureTrustee and the Note Administrator shall hold all such money and propertyreceived by it in trust for the Noteholders and shall apply it as provided inthis Indenture.  Except as otherwiseexpressly provided in this Indenture, if any default occurs in the making ofany payment or performance under the Transfer and Servicing Agreement or anyother Transaction Document, the Indenture Trustee may, and upon the request ofthe Majority Noteholders of an affected Series shall, take such action as maybe appropriate to enforce such payment or performance, including theinstitution and prosecution of appropriate Proceedings.  Any such action shall be without prejudiceto any right to claim a Redemption Event or a Default or Event of Default underthis Indenture and to proceed thereafter as provided in Article V hereof.

 

Section 8.02.          Rightsof Noteholders.

 

The Collateral shall secure the obligation of theTrust to pay to the Holders of the Notes of each Series principal and interestand other amounts payable pursuant to this Indenture and the related IndentureSupplement.  Except as specifically setforth in the Indenture Supplement with respect thereto, the Notes of any Seriesor Class shall not have rights to payment from any Series Account or SeriesEnhancement allocated solely for the benefit of any other Series or Class.

 

Section 8.03.          Establishmentof Collection Account.

 

The Issuer, for the benefit of the Noteholders and theholder of any other interest in the Receivables as specified in the relatedIndenture Supplement, shall establish and maintain with the Note Administratoror its nominee in the name of the Indenture Trustee, on behalf of the Trust,one or more Qualified Accounts (including any subaccount thereof) bearing adesignation clearly indicating that the funds and other property creditedthereto are held for the benefit of the Noteholders (collectively, the “**Collection Account**”).  The Note Administrator, on behalf of theIndenture Trustee, shall possess all right, title and interest in all monies,instruments, investment property, documents, certificates of deposit and otherproperty credited from time to time to the Collection Account and in allproceeds, earnings, income, revenue, dividends and distributions thereof forthe benefit of the Noteholders.

 

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The Collection Account shall be under the soledominion and control of the Note Administrator for the benefit of theNoteholders.  Except as expresslyprovided in this Indenture and the Transfer and Servicing Agreement, the Issueragrees that it shall have no right of setoff or banker’s lien against, and noright to otherwise deduct from, any funds held in the Collection Account forany amount owed to it by the Indenture Trustee, the Note Administrator, theTransferor, any Noteholder or any Series Enhancer.  If, at any time, the Collection Account ceases to be a QualifiedAccount, the Note Administrator (or the Issuer on its behalf) shall within ten(10) Business Days (or such longer period, not to exceed thirty (30) calendardays, as to which each Rating Agency may consent) establish a new CollectionAccount meeting the conditions specified above, transfer any monies, documents,instruments, investment property, certificates of deposit and other property tosuch new Collection Account and from the date such new Collection Account isestablished, it shall be the “Collection Account.”

 

Funds on deposit in the Collection Account (other thaninvestment earnings and amounts deposited pursuant to Section 2.06, 6.01, or7.01 of the Transfer and Servicing Agreement or Section 11.02 of thisIndenture) shall at the written direction of the Servicer be invested by theNote Administrator in Eligible Investments selected by the Servicer.  All such Eligible Investments shall be heldby the Note Administrator for the benefit of the Noteholders pursuant toSection 6.14.  Investments of fundsrepresenting Collections collected during any Monthly Period shall be investedin Eligible Investments that will mature so that such funds will be availableno later than the close of business on each monthly Transfer Date followingsuch Monthly Period.  No such EligibleInvestment shall be disposed of prior to its maturity; provided, however,that the Note Administrator shall sell, liquidate or dispose of any suchEligible Investment before its maturity, at the written direction of theServicer, if, prior to the maturity of such Eligible Investment, a defaultoccurs in the payment of principal, interest or any other amount with respectto such Eligible Investment.  Unlessdirected by the Servicer, funds deposited in the Collection Account on aTransfer Date with respect to the immediately succeeding Distribution Date arenot required to be invested overnight. On each Distribution Date, all interest and other investment earnings(net of losses and investment expenses) on funds on deposit in the CollectionAccount shall be treated as Finance Charge Collections, except as otherwisespecified in any Indenture Supplement. The Note Administrator shall bear no responsibility or liability for anylosses resulting from investment or reinvestment of any funds in accordancewith this Section 8.03 nor for the selection of Eligible Investments inaccordance with the provisions of this Indenture and any Indenture Supplement(other than Eligible Investments on which the institution acting as NoteAdministrator is an obligor).

 

Section 8.04.          Collections;Daily Release of Collections; Allocations.

 

(a)           TheServicer will instruct the Note Administrator to apply on behalf of theIndenture Trustee all funds on deposit in the Collection Account as describedin this Article VIII and in each Indenture Supplement.  Except as otherwise provided below, theServicer shall deposit Collections into the Collection Account as promptly aspossible after the Date of Processing of such Collections, but in no eventlater than the second Business Day following the Date of Processing.

 

(b)           Providedthat the conditions for the daily release of Collections of Receivables setforth in the applicable Indenture Supplement are satisfied, the NoteAdministrator will release Collections of Receivables to the Transferorpursuant to and subject to the terms and conditions of such IndentureSupplement on each day for the purchase of Principal Receivables by the Issuerup to the amount required to purchase all newly created Principal Receivablesthat are not Non-Conforming Terms Change Receivables.

 

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(c)           Collectionsof Finance Charge Receivables, Principal Receivables and Defaulted Receivableswill be allocated to each Series and to the Transferor in accordance with thisArticle VIII and each Indenture Supplement and amounts so allocated to anySeries will not, except as specified in the related Indenture Supplement, beavailable to the Noteholders or the O/C Holder of any other Series.  All other amounts not otherwise allocated toa Series shall be allocated to the Transferor Amount.  Allocations of the foregoing amounts among the Holders of theNotes, the O/C Holder and the Transferor, among the Series and among theClasses in any Series, shall be set forth in the related Indenture Supplementor Indenture Supplements.

 

(d)           TheNote Administrator, at the direction of the Servicer and on behalf of theIndenture Trustee, shall within two Business Days of each Deposit Date withdrawfrom the Collection Account and distribute to the Transferor all Collectionsallocated to the Transferor, except to the extent previously released and paidby the Issuer to the Transferor for the purchase of Principal Receivablespursuant to subsection 8.04(b) above and the related Indenture Supplement.

 

Section 8.05.          SharedPrincipal Collections.

 

On each Distribution Date, (a) the Note Administrator,at the written direction of the Servicer received no later than the Determination Date and on behalf ofthe Indenture Trustee, shall allocate Shared Principal Collections (asdescribed below) to each Principal Sharing Series, *pro rata*, in proportion tothe Principal Shortfalls, if any, with respect to each such Series and (b) theServicer shall withdraw from the Collection Account and pay to the Issuer anamount equal to the excess, if any, of (x) the aggregate amount for alloutstanding Series of Collections of Principal Receivables which the relatedIndenture Supplements specify are to be treated as “**Shared Principal Collections**” for suchDistribution Date over (y) the aggregate amount for all outstanding Serieswhich the related Indenture Supplements specify are “**Principal Shortfalls**” for such Seriesand for such Distribution Date.

 

Section 8.06.          [Reserved].

 

Section 8.07.          Releaseof Collateral; Eligible Loan Documents.

 

(a)           TheIndenture Trustee may, and when required by the provisions of this Indentureshall, execute instruments prepared by and at the expense of the Issuer torelease property from the lien of this Indenture, or convey the IndentureTrustee’s interest in the same, in a manner and under circum­stances which areconsistent with the provisions of this Indenture.  No party relying upon an instrument executed by the IndentureTrustee as provided in this Article VIII shall be bound to ascertain theIndenture Trustee’s authority, inquire into the satisfaction of any conditionsprecedent or see to the application of any monies.

 

(b)           Inorder to facilitate the servicing of the Receivables by the Servicer, theIndenture Trustee upon Issuer Order shall authorize the Servicer to execute inthe name and on behalf of the Indenture Trustee instruments of satisfaction orcancellation, or of partial or full release or discharge, and other comparableinstruments with respect to the Receivables (and the Indenture Trustee shallexecute any such documents on request of the Servicer), subject to theobligations of the Servicer under the Transfer and Servicing Agreement.

 

(c)           TheIndenture Trustee shall, at such time as there are no Notes outstanding,release and transfer to the O/C Holder, without recourse, all of the Collateralthat secured the Notes (other than any cash held for the payment of the Notespursuant to Section 

 

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4.02).  The Indenture Trusteeshall release property from the lien of this Indenture pursuant to this Section8.07(c) only upon receipt of an Issuer Order accompanied by an Officer’sCertificate and an Opinion of Counsel.

 

(d)           Notwithstandinganything to the contrary in this Indenture, the Transfer and ServicingAgreement and the Trust Agreement, immediately prior to the release of anyportion of the Collateral or any funds on deposit in the Series Accountspursuant to this Indenture after payment in full of the Notes of a Series, theIndenture Trustee shall remit to the O/C Holder for its own account any fundswith respect to such Series that, upon such release, would otherwise beremitted to the Issuer.

 

Section 8.08.          Opinionof Counsel.

 

The Indenture Trustee shall receive at least seven (7)days notice when requested by the Issuer to take any action pursuant tosubsection 8.07(a), accompanied by copies of any instruments involved, and theIndenture Trustee shall also require, as a condition to such action, an Opinionof Counsel (which shall be obtained at the expense of the Issuer), in form andsubstance reasonably satisfactory to the Indenture Trustee, stating the legaleffect of any such action, outlining the steps required to complete the same,and concluding that all conditions precedent to the taking of such action havebeen complied with and such action will not materially and adversely impair thesecurity for the Notes or any other interests in the Receivables specified inthe related Indenture Supplement or the rights of the Noteholders or holders ofsuch other interests in contravention of the provisions of this Indenture; provided,however, that such Opinion of Counsel shall not be required to expressan opinion as to the fair value of the Collateral. The counsel rendering anysuch opinion may rely, without independent investigation, on the accuracy andvalidity of any certificate or other instrument delivered to the IndentureTrustee in connection with any such action.

 

ARTICLE IX

 

DISTRIBUTIONS AND REPORTSTO NOTEHOLDERS

 

Distributions shall be made to, and reports shall beprovided to, Noteholders as set forth in the applicable IndentureSupplement.  The identity of theNoteholders with respect to distributions and reports shall be determinedaccording to the immediately preceding Record Date.

 

ARTICLE X

 

SUPPLEMENTAL INDENTURES

 

Section 10.01.        Supplemental Indentures WithoutConsent of Noteholders.

 

(a)           Withoutthe consent of the Holders of any Notes, but upon satisfaction of the RatingAgency Condition, the Issuer, the Note Administrator and the Indenture Trustee,when authorized by an Issuer Order, at any time and from time to time, mayenter into one or more indentures supplemental hereto for any of the followingpurposes:

 

(i)            to correct or enhance thedescription of any property at any time subject to the lien of this Indenture,or better to assure, convey and confirm unto the Indenture 

 

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Trustee any property subject or required to besubjected to the lien of this Indenture, or to subject to the lien of thisIndenture additional property;

 

(ii)           to evidence the succession, incompliance with Section 3.11 hereof, of another Person to the Issuer, and theassumption by any such successor of the covenants of the Issuer containedherein, in the Notes and in the O/C Certificate;

 

(iii)          to add to the covenants of the Issuer,for the benefit of the Holders of the Notes, or to surrender any right or powerherein conferred upon the Issuer;

 

(iv)          to convey, transfer, assign, mortgageor pledge any property to or with the Indenture Trustee;

 

(v)           to cure any ambiguity, to correct orsupplement any provision herein or in any supplemental indenture that may beinconsistent with any other provision herein or in any supplemental indentureor to make any other provisions with respect to matters or questions arisingunder this Indenture or in any supplemental indenture; provided thatsuch action shall not adversely affect the interests of the Holders of anySeries or Class of Outstanding Notes;

 

(vi)          to evidence and provide for theacceptance of the appointment hereunder by a successor indenture trustee orsuccessor note administrator with respect to the Notes and to add to or changeany of the provisions of this Indenture as shall be necessary to facilitate theadministration of the trusts hereunder by more than one indenture trustee,pursuant to the requirements of Article VI;

 

(vii)         to provide for the issuance of one ormore new Series of Notes, in accordance with the provisions of Section 2.11hereof;

 

(viii)        to provide for the termination of anyinterest rate swap agreement or other form of credit enhancement in accordancewith the provisions of the related Indenture Supplement; or

 

(ix)           to provide for the listing of one ormore Classes of any Series of Notes on any securities exchange.

 

The Indenture Trustee and the Note Administrator are each herebyauthorized to join in the execution of any such supplemental indenture and tomake any further appropriate agreements and stipulations that may be thereincontained.

 

(b)           TheIssuer, the Note Administrator and the Indenture Trustee, when authorized by anIssuer Order, may, also without the consent of any Noteholders of any Seriesthen Outstanding but upon satisfaction of the Rating Agency Condition withrespect to the Notes of all Series, enter into an indenture or indenturessupplemental hereto for the purpose of adding any provisions to, or changing inany manner or eliminating any of the provisions of, this Indenture or ofmodifying in any manner the rights of the Holders of the Notes under thisIndenture; provided, however**that (i) the O/C Holder shall havedelivered to the Indenture Trustee and the Note Administrator an Officer’sCertificate, dated the date of any such action, stating that the O/C Holderreasonably believes that such action will not have an Adverse Effect and(ii) a Tax Opinion shall have been delivered to each Rating Agency.  Additionally, notwithstanding the precedingsentence, the Issuer, the Note Administrator and the Indenture 

 

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Trustee, when authorized by an Issuer Order, may, without the consentof any Noteholders of any Series then Outstanding or the Series Enhancers forany Series, enter into an indenture or indentures supplemental hereto to add,modify or eliminate such provisions as may be necessary or advisable in orderto enable all or a portion of the Trust (i) to qualify as, and to permit anelection to be made to cause the Trust to be treated as, a “financial assetsecuritization investment trust” as described in the provisions of Section 860Lof the Code, and (ii) to avoid the imposition of state or local income orfranchise taxes imposed on the Trust’s property or its income; provided,however, that (i) the O/C Holder delivers to the Indenture Trustee, theNote Administrator and the Owner Trustee an Officer’s Certificate to the effectthat the proposed amendments meet the requirements set forth in this subsection10.01(b), (ii) the Rating Agency Condition will have been satisfied and (iii)such amendment does not affect the rights, duties or obligations of theIndenture Trustee, the Note Administrator or the Owner Trustee hereunder.

 

Notes held by the Transferor or any of its Affiliatesor agents (to the extent actually known to be held by a Responsible Officer ofthe Indenture Trustee) will not be considered in the determination of (i)whether the requisite percentage of Notes Outstanding has been obtained insupport of any amendment under this Section 10.01 and (ii) the amount of NotesOutstanding in connection with the calculation of such requisite percentage.

 

Section 10.02.        Supplemental Indentures with Consentof Noteholders.

 

The Issuer, the Note Administrator and the IndentureTrustee, when authorized by an Issuer Order, also may, upon satisfaction of theRating Agency Condition and with the consent of the Majority Noteholders ofeach adversely affected Series of Notes, by Act of such Holders delivered tothe Issuer, the Note Administrator and the Indenture Trustee, enter into anindenture or indentures supplemental hereto for the purpose of adding anyprovisions to, changing in any manner or eliminating any of the provisions of thisIndenture or of modifying in any manner the rights of such Noteholders underthis Indenture; provided, however that no such supplementalindenture shall, without the consent of the Holder of each outstanding Noteadversely affected thereby:

 

(a)           changethe due date of any installment of principal of or interest on any Note, orreduce the principal amount thereof, the interest rate specified thereon or theredemption price with respect thereto or change any place of payment where, orthe coin or currency in which, any Note or any interest thereon is payable;

 

(b)           impairthe right to institute suit for the enforcement of the provisions of thisIndenture requiring the application of funds available therefor, as provided inArticle V, to the payment of any such amount due on the Notes on or after therespective due dates thereof (or, in the case of redemption, on or after theRedemption Date);

 

(c)           reducethe percentage of the Outstanding Amount of the Notes of any Series outstandingthe consent of the Holders of which is required for any such supplementalindenture, or the consent of the Holders of which is required for any waiver ofcompliance with certain provisions of this Indenture or certain defaultshereunder and their consequences as provided for in this Indenture;

 

(d)           reducethe percentage of the Outstanding Amount of the Notes of any Series outstandingthe consent of the Holders of which is required to direct the Indenture Trusteeto sell or liquidate the Collateral if the proceeds of such sale would beinsufficient to pay the principal amount and accrued but unpaid interest on theoutstanding Notes of such Series;

 

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(e)           decreasethe percentage of the Outstanding Amount of the Notes of any Series required toamend the sections of this Indenture which specify the applicable percentage ofthe Outstanding Amount of the Notes of such Series necessary to amend theIndenture or any Transaction Documents which require such consent;

 

(f)            modifyor alter the provisions of this Indenture prohibiting the voting of Notes heldby the Trust, any other obligor on the Notes, an Accounts Owner or anyaffiliate thereof; or

 

(g)           permitthe creation of any Lien ranking prior to or on a parity with the lien of thisIndenture with respect to any part of the Collateral for any Notes or, exceptas otherwise permitted or contemplated herein, terminate the lien of thisIndenture on any such Collateral at any time subject hereto or deprive theHolder of any Note or the holder of any other interest in the Receivables asspecified in the related Indenture Supplement of the security provided by theLien of this Indenture.

 

Notes held by the Transferor or any of its Affiliatesor agents (to the extent actually known to be held by a Responsible Officer ofthe Indenture Trustee) will not be considered in the determination of (i)whether the requisite percentage of Notes Outstanding has been obtained insupport of any amendment under this Section 10.02 and (ii) the amount of NotesOutstanding in connection with the calculation of such requisite percentage.

 

It shall not be necessary for any Act of Noteholdersunder this Section 10.02 to approve the particular form of any proposedsupplemental indenture, but it shall be sufficient if such Act shall approvethe substance thereof.

 

Promptly after the execution by the Issuer, the NoteAdministrator and the Indenture Trustee of any supplemental indenture pursuantto this Section 10.02, the Note Administrator shall mail to the Holders of theNotes to which such supplemental indenture relates written notice setting forthin general terms the substance of such supplemental indenture.  Any failure of the Note Administrator tomail such notice, or any defect therein, shall not, however, in any way impairor affect the validity of any such supplemental indenture.

 

Section 10.03.        Execution of Supplemental Indentures.

 

In executing, or permitting the additional trustscreated by, any supplemental indenture permitted by this Article X or themodification thereby of the trusts created by this Indenture, the IndentureTrustee and the Note Administrator shall be entitled to receive, and subject toSections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion ofCounsel stating that the execution of such supplemental indenture is authorizedor permitted by this Indenture.  TheIndenture Trustee, the Note Administrator or Owner Trustee may, but shall notbe obligated to, enter into any such supplemental indenture that affects theIndenture Trustee’s, the Note Administrator’s or Owner Trustee’s (as such or inits individual capacity) own rights, duties, liabilities, benefits,protections, privileges or immunities under this Indenture or otherwise.

 

Section 10.04.        Effect of Supplemental Indenture.

 

Upon the execution of any supplemental indenture underthis Article X, this Indenture shall be modified in accordance therewith, andsuch supplemental indenture shall form a part of this Indenture for allpurposes, and every Holder of Notes theretofore or thereafter authenticated anddelivered hereunder shall be bound thereby.

 

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Section 10.05.        Reference in Notes to SupplementalIndentures.

 

Notes authenticated and delivered after the executionof any supplemental indenture pursuant to this Article X may, and if requiredby the Note Administrator shall, bear a notation in form approved by the NoteAdministrator as to any matter provided for in such supplementalindenture.  If the Issuer shall sodetermine, new Notes so modified as to conform to any such supplementalindenture may be prepared and executed by the Issuer and authenticated anddelivered by the Note Administrator in exchange for the Outstanding Notes.

 

ARTICLE XI

 

TERMINATION

 

Section 11.01.        Termination of Trust.

 

The Trust and the respective obligations andresponsibilities of the Indenture Trustee and the Note Administrator createdhereby (other than the obligation of the Note Administrator to make payments toNoteholders as hereinafter set forth) shall terminate, except with respect tothe duties described in subsection 11.02(b), as provided in the TrustAgreement.

 

Section 11.02.        Final Distribution.

 

(a)           TheServicer shall give the Indenture Trustee and the Note Administrator at leastthirty (30) days prior notice of the Distribution Date on which the Noteholdersof any Series or Class or the O/C Holder may surrender their Notes or O/CCertificate, as applicable, for payment of the final distribution on andcancellation of such Notes (or, in the event of a final distribution resultingfrom the application of Section 2.06, 6.01 or 7.01 of the Transfer andServicing Agreement, notice of such Distribution Date promptly after theServicer has determined that a final distribution will occur, if such determinationis made less than thirty (30) days prior to such Distribution Date).  Such notice shall be accompanied by anOfficer’s Certificate setting forth the information specified in Section 3.05of the Transfer and Servicing Agreement covering the period during thethen-current calendar year through the date of such notice.  Not later than the fifth day of the month inwhich the final distribution in respect of such Series or Class is payable toNoteholders, the Note Administrator shall provide notice to Noteholders of suchSeries or Class specifying (i) the date upon which final payment of such Seriesor Class will be made upon presentation and surrender of Notes of such Seriesor Class at the office or offices therein designated, (ii) the amount of any suchfinal payment and (iii) that the Record Date otherwise applicable to suchpayment date is not applicable, payments being made only upon presentation andsurrender of such Notes at the office or offices therein specified.  The Note Administrator shall give suchnotice to the Transfer Agent and Registrar, the Indenture Trustee and thePaying Agent at the time such notice is given to Noteholders.

 

(b)           Notwithstandinga final distribution to the Noteholders of any Series or Class (or thetermination of the Trust), except as otherwise provided in this paragraph, allfunds then on deposit in the Collection Account and any Series Accountallocated to such Noteholders shall continue to be held in trust for thebenefit of such Noteholders and the Paying Agent or the Note Administratorshall remit such funds to such Noteholders upon surrender of their Notes, ifcertificated.  In the event that allsuch Noteholders shall not surrender their Notes for cancellation within six (6)months after the date specified in the notice from the Indenture Trusteedescribed in paragraph (a), the Note Administrator shall give a second noticeto the remaining such 

 

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Noteholders to surrender their Notes for cancellation and receive thefinal distribution with respect thereto. If within one year after the second notice all such Notes shall not havebeen surrendered for cancellation, the Note Administrator may take appropriatesteps, or may appoint an agent to take appropriate steps, to contact theremaining such Noteholders concerning surrender of their Notes, and the costthereof shall be paid out of the funds in the Collection Account or any SeriesAccount held for the benefit of such Noteholders.  The Note Administrator and the Paying Agent shall pay to theIssuer any monies held by them for the payment of principal or interest thatremains unclaimed for two (2) years. After payment to the Issuer, Noteholders entitled to the money must lookto the Issuer for payment as general creditors unless an applicable abandonedproperty law designates another Person.

 

Section 11.03.        Termination Distributions.

 

Upon the termination of the Trust pursuant to theterms of the Trust Agreement, the Indenture Trustee shall assign and convey tothe Issuer or any of its designees, without recourse, representation orwarranty, all right, title and interest of the Trust in the Receivables,whether then existing or thereafter created, all Interchange and Recoveriesrelated thereto, all monies due or to become due and all amounts received orreceivable with respect thereto (including all monies then held in theCollection Account or any Series Account) and all proceeds thereof, except foramounts held by the Indenture Trustee pursuant to subsection 11.02(b).  The Indenture Trustee shall execute anddeliver such instruments of transfer and assignment, in each case withoutrecourse, as shall be prepared by and reasonably requested by the Issuer tovest in the Issuer or any of its designees all right, title and interest whichthe Indenture Trustee had in the Collateral and such other property.

 

ARTICLE XII

 

MISCELLANEOUS

 

Section 12.01.        Compliance Certificates and Opinionsetc.

 

(a)           Uponany application or request by the Issuer to the Indenture Trustee  or Note Administrator to take any actionunder any provision of this Indenture, the Issuer shall furnish to theIndenture Trustee and Note Administrator (i) an Officer’s Certificatestating that all conditions precedent, if any, provided for in this Indenturerelating to the proposed action have been complied with and (ii) anOpinion of Counsel stating that in the opinion of such counsel all suchconditions precedent, if any, have been complied with, except that, in the caseof any such application or request as to which the furnishing of such documentsis specifically required by any provision of this Indenture, no additionalcertificate or opinion need be furnished.

 

Every certificate or opinion with respect tocompliance with a condition or covenant provided for in this Indenture shallinclude:

 

(i)            a statement that each signatory ofsuch certificate or opinion has read or has caused to be read such covenant orcondition and the definitions herein relating thereto;

 

(ii)           a brief statement as to the natureand scope of the examination or investigation upon which the statements oropinions contained in such certificate or opinion are based;

 

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(iii)          a statement that, in the opinion ofeach such signatory, such signatory has made such examination or investigationas is necessary to enable such signatory to express an informed opinion as towhether or not such covenant or condition has been complied with; and

 

(iv)          a statement as to whether, in theopinion of each such signatory, such condition or covenant has been compliedwith.

 

(b)           (i)  Prior to the deposit of any Collateral orother property or securities with the Indenture Trustee that is to be made thebasis for the release of any property or securities subject to the lien of thisIndenture, the Issuer shall, in addition to any obligation imposed insubsection 12.01(a) or elsewhere in this Indenture, furnish to the IndentureTrustee and Note Administrator an Officer’s Certificate certifying or statingthe opinion of each person signing such certificate as to the fair value(within ninety (90) days of such deposit) to the Issuer of the Collateral orother property or securities to be so deposited.

 

(ii)           [Reserved].

 

(iii)          Other than with respect to the releaseof any Defaulted Receivables and Receivables in Removed Receivables, wheneverany property or securities are to be released from the lien of this Indenture,the Issuer shall also furnish to the Indenture Trustee  and the Note Administrator an Officer’sCertificate certifying or stating the opinion of each Person signing suchcertificate as to the fair value (within ninety (90) days of such release) ofthe property or securities proposed to be released and stating that in theopinion of such Person the proposed release will not impair the security underthis Indenture in contravention of the provisions hereof.

 

(iv)          [Reserved].

 

(v)           Notwithstanding any other provisionof this Section 12.01, the Issuer may (A) collect, liquidate, sell or otherwisedispose of Receivables as and to the extent permitted or required by theTransaction Documents and (B) make cash payments out of the Series Accounts asand to the extent permitted or required by the Transaction Documents.

 

Section 12.02.        Form of Documents Delivered to IndentureTrustee.

 

In any case where several matters are required to becertified by, or covered by an opinion of, any specified Person, it is notnecessary that all such matters be certified by, or covered by the opinion of,only one such Person, or that they be so certified or covered by only onedocument, but one such Person may certify or give an opinion with respect tosome matters and one or more other such Persons as to other matters, and anysuch Person may certify or give an opinion as to such matters in one or severaldocuments.

 

Any certificate or opinion of an Authorized Officer ofthe Issuer may be based, insofar as it relates to legal matters, upon acertificate or opinion of, or representations by, counsel, unless such officerknows, or in the exercise of reasonable care should know, that the certificateor opinion or representations with respect to the matters upon which suchofficer’s certificate or opinion is based are erroneous.  Any such certificate of an AuthorizedOfficer or Opinion of Counsel may be based, insofar as it relates to factualmatters, upon a certificate or opinion of, or representations by, an officer orofficers of the Servicer, an Accounts Owner, the 

 

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O/C Holder, the Issuer or the Administrator, stating that theinformation with respect to such factual matters is in the possession of theServicer, an Accounts Owner, the O/C Holder, the Issuer or the Administrator,unless such an Authorized Officer or Counsel knows, or in the exercise ofreasonable care should know, that the certificate or opinion or representationswith respect to such matters are erroneous.

 

Where any Person is required to make, give or executetwo (2) or more applications, requests, consents, certificates, statements,opinions or other instruments under this Indenture, they may, but need not, beconsolidated and form one instrument.

 

Whenever in this Indenture, in connection with anyapplication or certificate or report to the Indenture Trustee and the Note Administrator,it is provided that the Issuer shall deliver any document as a condition of thegranting of such application, or as evidence of the Issuer’s compliance withany term hereof, it is intended that the truth and accuracy, at the time of thegranting of such application or at the effective date of such certificate orreport (as the case may be), of the facts and opinions stated in such documentshall in such case be conditions precedent to the right of the Issuer to havesuch application granted or to the sufficiency of such certificate orreport.  The foregoing shall not,however, be construed to affect the Indenture Trustee’s or the NoteAdministrator’s right to rely upon the truth and accuracy of any statement oropinion contained in any such document as provided in Article VI.

 

Section 12.03.        Acts of Noteholders.

 

(a)           Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction provided by this Indenture to be given or taken by Noteholders may beembodied in and evidenced by one or more instruments of substantially similartenor signed by such Noteholders in person or by agent duly appointed inwriting and satisfying any requisite percentages as to minimum number or dollarvalue of outstanding principal amount represented by such Noteholders; and,except as herein otherwise expressly provided, such action shall becomeeffective when such instrument or instruments are delivered to the IndentureTrustee, and, where it is hereby expressly required, to the Issuer.  Such instrument or instruments (and theaction embodied therein and evidenced thereby) are herein sometimes referred toas the “Act” of the Noteholders signing such instrument orinstruments.  Proof of execution of anysuch instrument or of a writing appointing any such agent shall be sufficientfor any purpose of this Indenture and conclusive in favor of the IndentureTrustee and the Issuer, if made in the manner provided in this Section 12.03.

 

(b)           Thefact and date of the execution by any Person of any such instrument or writingmay be proved in any manner which the Indenture Trustee deems sufficient.

 

(c)           Theownership of Notes shall be proved by the Note Register.

 

(d)           Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction by the Holder of any Notes shall bind the Holder (and any transfereethereof) of every Note issued upon the registration thereof in exchangetherefor or in lieu thereof, in respect of anything done, omitted or sufferedto be done by the Indenture Trustee or the Issuer in reliance thereon, whetheror not notation of such action is made upon such Note.

 

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Section 12.04.        Notices, Etc. to Indenture Trusteeand Issuer.

 

Any request, demand, authorization, direction, notice,consent, waiver or Act of Noteholders or other documents provided or permittedby the Agreement to be made upon, given or furnished to, or filed with:

 

(a)           theIndenture Trustee by any Noteholder or by the Issuer shall be sufficient forevery purpose hereunder if made, given, furnished or filed in writing to aResponsible Officer, by facsimile transmission or by other means acceptable tothe Indenture Trustee to or with the Indenture Trustee at its Corporate TrustOffice;

 

(b)           theIssuer by the Indenture Trustee or by any Noteholder shall be sufficient forevery purpose hereunder if in writing and mailed, first-class postage prepaid,to the Issuer addressed to it at Wilmington Trust Company, Rodney Square North,1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration, or at anyother address previously furnished in writing to the Indenture Trustee by theIssuer.  A copy of each notice to theIssuer shall be sent in writing and mailed, first-class postage prepaid, to theAdministrator at 245 Perimeter Center Parkway, Suite 600, Atlanta, Georgia30346; or

 

(c)           theNote Administrator by any Noteholder or by the Issuer shall be sufficient forevery purpose hereunder if made, given, furnished or filed in writing to aResponsible Officer, by facsimile transmission or by other means acceptable tothe Note Administrator to or with the Note Administrator at its Corporate TrustOffice.

 

Section 12.05.        Notices to Noteholders; Waiver.

 

Where the Indenture provides for notice to Noteholdersof any event, such notice shall be sufficiently given (unless otherwise hereinexpressly provided) if in writing and mailed by registered or certified mail orfirst class postage prepaid or national overnight courier service to each Noteholderaffected by such event, at its address as it appears on the Note Register, notlater than the latest date, and not earlier than the earliest date, prescribedfor the giving of such notice.  In anycase where notice to Noteholders is given by mail, neither the failure to mailsuch notice, nor any defect in any notice so mailed, to any particularNoteholder shall affect the sufficiency of such notice with respect to otherNoteholders, and any notice which is mailed in the manner herein provided shallconclusively be presumed to have been duly given.

 

Where this Indenture provides for notice in anymanner, such notice may be waived in writing by any Person entitled to receivesuch notice, either before or after the event, and such waiver shall be theequivalent of such notice.  Waivers ofnotice by Noteholders shall be filed with the Indenture Trustee but such filingshall not be a condition precedent to the validity of any action taken inreliance upon such waiver.

 

In the event that, by reason of the suspension ofregular mail service as a result of a strike, work stoppage or similaractivity, it shall be impractical to mail notice of any event to Noteholderswhen such notice is required to be given pursuant to any provision of thisIndenture, then any manner of giving such notice as shall be satisfactory tothe Indenture Trustee shall be deemed to be a sufficient giving of such notice.

 

Where this Indenture provides for notice to any RatingAgency, failure to give such notice shall not affect any other rights orobligations created hereunder and shall not under any circumstance constitute aDefault or Event of Default.

 

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Section 12.06.        Alternate Payment and NoticeProvisions.

 

Notwithstanding any provision of this Indenture or anyof the Notes to the contrary, the Issuer, with the prior written consent of theIndenture Trustee, which consent may be withheld in the Indenture Trustee’ssole discretion, may enter into any agreement with any Holder of a Note providingfor a method of payment, or notice by the Indenture Trustee or any Paying Agentto such Holder, that is different from the methods provided for in thisIndenture for such payments or notices. The Issuer will furnish to the Indenture Trustee a copy of each suchagreement and the Indenture Trustee will cause payments to be made and noticesto be given in accordance with such agreements.

 

Section 12.07.        Effect of Headings and Table ofContents.

 

The Article and Section headings herein and the Tableof Contents are for convenience only and shall not affect the constructionhereof.

 

Section 12.08.        Successors and Assigns.

 

All covenants and agreements in this Indenture by theIssuer and the Indenture Trustee shall bind its successors and assigns, whetherso expressed or not.

 

Section 12.09.        Severability.

 

In case any provision in this Indenture or in theNotes shall be invalid, illegal or unenforceable, the validity, legality, andenforceability of the remaining provisions shall not in any way be affected orimpaired thereby.

 

Section 12.10.        Benefits of Indenture.

 

Nothing in this Indenture or in the Notes, express orimplied, shall give to any Person, other than the parties hereto and theirsuccessors hereunder, the Noteholders, the Servicer, the Owner Trustee, the O/CHolder and the Transferor, any benefit.

 

Section 12.11.        Legal Holidays.

 

In any case where the date on which any payment is dueshall not be a Business Day, then (notwithstanding any other provision of theNotes or this Indenture) payment need not be made on such date, but may be madeon the next succeeding Business Day with the same force and effect as if madeon the date on which nominally due, and no interest shall accrue for the periodfrom and after any such nominal date.

 

Section 12.12.        **GOVERNINGLAW.**

 

**THISINDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEWYORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCEWITH SUCH LAWS.**

 

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Section 12.13.        Counterparts.

 

This Indenture may be executed in any number ofcounter­parts, each of which so executed shall be deemed to be an original, butall such counterparts shall together constitute but one and the sameinstrument.

 

Section 12.14.        Trust Obligation.

 

No recourse may be taken, directly or indirectly, withrespect to the obligations of the Issuer, the Owner Trustee, the CertificateTrustee, the Certificate Administrator, the Note Administrator or the IndentureTrustee on the Notes or any O/C Certificate or under this Indenture or anycertificate or other writing delivered in connection herewith or therewith,against (i) the Indenture Trustee, the Certificate Trustee, the CertificateAdministrator, the Note Administrator or the Owner Trustee in its individualcapacity, (ii) any owner of a beneficial interest in the Issuer or (iii) anypartner, owner, beneficiary, agent, officer, director, employee or agent of theIndenture Trustee, the Certificate Trustee, the Certificate Administrator, theNote Administrator or the Owner Trustee in its individual capacity, any holderof a beneficial interest in the Issuer, the Owner Trustee, the CertificateTrustee, the Certificate Administrator, the Note Administrator or the IndentureTrustee or of any successor or assign of the Indenture Trustee, the CertificateTrustee, the Certificate Administrator, the Note Administrator or the OwnerTrustee in its individual capacity, except as any such Person may haveexpressly agreed (it being understood that the Indenture Trustee, theCertificate Trustee, the Certificate Administrator, the Note Administrator andthe Owner Trustee have no such obligations in their individual capacity) andexcept that any such partner, owner or beneficiary shall be fully liable, tothe extent provided by applicable law, for any unpaid consideration for stock,unpaid capital contribution or failure to pay any installment or call owing tosuch entity.  For all purposes of thisIndenture, in the performance of any duties or obligations hereunder, the OwnerTrustee (as such or in its individual capacity) shall be subject to, andentitled to the benefits of, the terms and provisions of the Trust Agreement.

 

Section 12.15.        No Petition.

 

The Indenture Trustee and the Note Administrator, byentering into this Indenture, and each Noteholder, by accepting a Note, herebycovenant and agree that they will not at any time institute against the Issuer,or join in instituting against the Issuer or the Transferor, any bankruptcy,reorganization, arrangement, insolvency or liquidation proceedings, or otherproceedings under any United States federal or state bankruptcy or similar law.

 

Section 12.16.        Limitation of Liability.  Notwithstanding any other provision hereinor elsewhere, this Indenture has been executed and delivered by WilmingtonTrust Company, not in its individual capacity, but solely in its capacity asOwner Trustee of the Trust.  In no eventshall Wilmington Trust Company in its individual capacity have any liability inrespect of the representations, warranties, or obligations of the Trusthereunder or under any other document, as to all of which recourse shall be hadsolely to the assets of the Trust, and for all purposes of this Agreement andeach 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 provisionsof the Trust Agreement.

 

**Section 12.17**.      Certain Commercial Law Representationsand Warranties.  The Issuer herebymakes the following representations and warranties.  Such representations and warranties shall survive until thetermination of this Indenture.  Suchrepresentations and 

 

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warranties speak of the date that a security interest in the Collateral(as defined below) is granted to the Indenture Trustee but shall not be waivedby any of the parties to this Indenture unless the Rating Agency Condition issatisfied with respect to such waiver.

 

(a)           This Indenture creates a valid andcontinuing security interest (as defined in the applicable UCC) in favor of theIndenture Trustee in the Receivables described in the Granting Clause of thisIndenture (the “**Collateral**”),which security interest is prior to all other Liens, and is enforceable as suchagainst creditors of and purchasers from the Issuer.

 

(b)           The Collateral constitutes an“account” within the meaning of the applicable UCC.

 

(c)           At the time of its grant of any securityinterest in the Collateral pursuant to this Indenture, the Issuer owned and hadgood and marketable title to the Collateral free and clear of any lien, claimor encumbrance of any Person other than the Indenture Trustee.

 

(d)           The Issuer has caused or will havecaused, within ten (10) days of the initial execution of this Indenture, thefiling of all appropriate financing statements in the proper filing office inthe appropriate jurisdictions under applicable law in order to perfect thesecurity interest in the Collateral granted to the Indenture Trustee pursuantto this Indenture.

 

(e)           The Issuer has registered theIndenture Trustee as the registered owner of the Collateral.

 

(f)            Other than the security interestgranted to the Indenture Trustee pursuant to this Indenture, the Issuer has notpledged, assigned, sold, granted a security interest in, or otherwise conveyedthe Collateral.  The Issuer has notauthorized the filing of and is not aware of any financing statements againstthe Issuer that include a description of the Collateral other than anyfinancing statement relating to the security interest granted to the IndentureTrustee pursuant to this Indenture or that has been terminated.  The Issuer is not aware of any judgment ortax lien filings against the Issuer.

 

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IN WITNESS WHEREOF, the Issuer and the IndentureTrustee have caused this Indenture to be duly executed by their respectiveofficers thereunto duly authorized and attested, all as of the day and yearfirst above written.

 

 
|   | CSGQ TRUST,                                                                                      |
|--------|--------------------------------------------------------------------------------------------------|
|   | as Issuer                                                                                        |
|   |                                                                                             |
|   | By:  Wilmington Trust Company,  not in its individual capacity  but solely as Owner Trustee |
|   |                                                                                             |
|   |                                                                                             |
|   |                                                                                             |
|   | By:                                                                                              |   |
|   | Name:                                                                                            |
|   | Title:                                                                                           |
|   |                                                                                             |
|   | U.S. BANK NATIONAL ASSOCIATION,                                                                  |
|   | as Indenture Trustee                                                                             |
|   |                                                                                             |
|   | By:                                                                                              |   |
|   | Name:                                                                                            |
|   | Title:                                                                                           |
|   |                                                                                             |
|   | CITIBANK, N.A.,                                                                                  |
|   | as Note Administrator                                                                            |
|   |                                                                                             |
|   | By:                                                                                              |   |
|   | Name:                                                                                            |
|   | Title:                                                                                           |

 

[Signature Page toedMaster Indenture]

 

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| Acknowledged and Accepted: |
|----------------------------|
|                       |
| COMPUCREDIT CORPORATION,   |
| as Servicer                |
|                       |
| By:                        |   |   |
| Name:                      |
| Title:                     |
|                       |
| CSG FUNDING, LLC,          |
| as O/C Holder              |
|                       |
| By:                        |   |   |
| Name:                      |
| Title:                     |
|                       |
| PACCT, LLC,                |
| as Transferor              |
|                       |
| By:                        |   |   |
| Name:                      |
| Title:                     |
|                            |  |  |  |  |

 

[Signature Page to MasterIndenture]

 

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