UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 20, 2017
UNITED STATES CELLULAR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware |
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001-09712 |
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62-1147325 |
(State or other jurisdiction of |
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(Commission |
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(I.R.S. Employer Identification No.) |
incorporation or organization) |
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File Number) |
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8410 West Bryn Mawr, Chicago, Illinois 60631
(Address of principal executive offices) (Zip code)
Registrants telephone number, including area code: (773) 399-8900
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
o Emerging growth company
o If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01. Entry into a Material Definitive Agreement.
This Current Report on Form 8-K is being filed to disclose that on December 20, 2017 (the Effective Date), United States Cellular Corporation (U.S. Cellular or the Company) and certain wholly-owned subsidiaries of the Company entered into agreements relating to the issuance of asset-backed variable funding notes which are collateralized by the receivable balances of equipment installment plan contracts of U.S. Cellulars customers (the Securitization) with Royal Bank of Canada (RBC), as administrative agent for owners of the securitized notes, with a maximum funding limit of $200,000,000 at any given time.
As part of the Securitization, a wholly-owned subsidiary of U.S. Cellular formed a bankruptcy-remote special purpose entity in the form of a Delaware trust (the USCC Master Note Trust) to which certain equipment installment plan contracts are assigned. An entity not affiliated with U.S. Cellular is the trustee of USCC Master Note Trust (Trustee). The aforementioned wholly-owned subsidiary of U.S. Cellular entered into an Amended and Restated Trust Agreement with the Trustee (Trust Agreement).
Certain of U.S. Cellulars wholly-owned subsidiaries have entered into agreements among themselves which provide for the transfer of equipment installment plan contracts to USCC Master Note Trust, and the subsequent continued servicing of those receivables by U.S. Cellulars wholly-owned subsidiary, USCC Services, LLC.
USCC Master Note Trust, as issuer, entered into an Indenture with USCC Services, LLC, as servicer, and U.S. Bank National Association as indenture trustee on December 20, 2017 (the Indenture), which allows USCC Master Note Trust to issue asset-backed notes in one or more series. Also on December 20, 2017, USCC Master Note Trust, as issuer, entered into an Indenture Supplement with USCC Services, LLC, as servicer, and U.S. Bank National Association as indenture trustee (the Supplemental Indenture), related to the creation and issuance of a series of floating rate asset-backed notes with a maximum aggregate principal balance of $200,000,000 (the Notes).
Pursuant to a Series 2017-VFN Note Purchase Agreement dated December 20, 2017, among USCC Receivables Funding LLC, as transferor, USCC Master Note Trust, as issuer, USCC Services, LLC, as Servicer, U.S. Cellular as performance guarantor, the owners party thereto, the managing agents party thereto, and RBC, as administrative agent for owners of the Notes, the Trust may issue the Notes to the owners named therein (the Note Purchase Agreement).
As a condition to the Note Purchase Agreement, U.S. Cellular entered into a Performance Guaranty whereby U.S. Cellular guarantees the performance of certain wholly-owned subsidiaries of U.S. Cellular under the transfer and servicing agreements referenced above as well as under the Indenture, the Supplemental Indenture, the Note Purchase Agreement and the Trust Agreement. U.S. Cellular does not guarantee that the receivables are collectable.
Two financial covenants as described below are included in the Supplemental Indenture:
1. Consolidated Interest Coverage Ratio (the ratio of Consolidated EBITDA to Consolidated Interest Charges), may not be less than 3.00 to 1 as of the end of any fiscal quarter.
2. Consolidated Leverage Ratio (the ratio of Consolidated Funded Indebtedness to Consolidated EBITDA) may not be greater than the ratios indicated for each period specified below:
Period |
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Ratios |
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From the Initial Closing Date through June 30, 2019 |
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3.25 to 1.00 |
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From July 1, 2019 and thereafter |
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3.00 to 1.00 |
The Indenture, the Supplemental Indenture, the Note Purchase Agreement and the Trust Agreement and related documents include representations and warranties, covenants, events of default and other terms and conditions that are customary for similar transactions or as specifically negotiated. The continued availability of funding under such arrangements requires U.S. Cellular to maintain the above financial ratios and comply with negative and affirmative covenants. Defaults as specified in such documents may result in an acceleration of obligations and a termination of the funding facilities.
A Change in Control, as such term is defined in the Supplemental Indenture, of U.S. Cellular or its parent, Telephone and Data Systems, Inc. (TDS), would constitute a default and result in acceleration of obligations thereunder and termination of the funding facilities.
The Note Purchase Agreement is scheduled to terminate in December 2019, two years from the Effective Date, but can be extended from time to time as specified therein.
As of the date hereof, no amounts have been borrowed under the Securitization facility, and $200,000,000 remains available, subject to sufficient collateral to satisfy the asset borrowing base provisions of the facility.
The foregoing brief description is qualified by reference to the copy of the Exhibits attached hereto, which are incorporated herein by reference, and which identifies the lenders thereunder.
Some of the parties of the documents attached as Exhibits and/or their affiliates may have various relationships with U.S. Cellular, TDS, and/or their subsidiaries involving banking or other financial services, including checking, cash management, brokerage, lending, investment banking, depository, indenture trustee and/or other services, including serving as a lender under TDS and/or U.S. Cellular credit agreements.
In reviewing the agreements included as Exhibits to this report, please note that they are included to provide information regarding their terms and are not intended to provide any other factual or disclosure information about the Company or the other parties to the agreements. Certain of the agreements contain representations and warranties by one or more of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
· should not in any instance be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;
· may have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;
· may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and
· were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about the Company may be found elsewhere in the Companys SEC filings, which are available without charge through the SECs website at http://www.sec.gov.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure set forth above under Item 1.01 is hereby incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits:
Exhibit Number |
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Description of Exhibit |
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4.1 |
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4.2 |
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10.1 |
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10.2 |
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10.3 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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UNITED STATES CELLULAR CORPORATION | |
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(Registrant) | |
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Date: |
December 22, 2017 |
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By: |
/s/ Steven T. Campbell |
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Steven T. Campbell |
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Executive Vice President - Finance, |
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Chief Financial Officer and Treasurer |
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(principal financial officer) |
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USCC MASTER NOTE TRUST,
as Issuer,
USCC SERVICES, LLC,
as Servicer,
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
MASTER INDENTURE
Dated as of December 20, 2017
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TABLE OF CONTENTS
SECTION |
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HEADING |
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PAGE | |
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ARTICLE I |
DEFINITIONS |
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3 | ||
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SECTION 1.1 |
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Definitions Provisions |
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3 | |
SECTION 1.2 |
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Incorporation by Reference of Trust Indenture Act |
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4 | |
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ARTICLE II |
THE NOTES |
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4 | ||
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SECTION 2.1 |
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Form Generally |
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4 | |
SECTION 2.2 |
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Denominations |
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5 | |
SECTION 2.3 |
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Execution, Authentication and Delivery |
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5 | |
SECTION 2.4 |
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Authenticating Agent |
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6 | |
SECTION 2.5 |
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Registration of and Limitations on Transfer and Exchange of Notes |
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7 | |
SECTION 2.6 |
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Mutilated, Destroyed, Lost or Stolen Notes |
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8 | |
SECTION 2.7 |
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Persons Deemed Owners |
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9 | |
SECTION 2.8 |
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Appointment of Paying Agent |
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9 | |
SECTION 2.9 |
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Access to List of Noteholders Names and Addresses |
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10 | |
SECTION 2.10 |
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Cancellation |
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10 | |
SECTION 2.11 |
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Release of Collateral |
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10 | |
SECTION 2.12 |
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New Issuances |
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11 | |
SECTION 2.13 |
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Book-Entry Notes |
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12 | |
SECTION 2.14 |
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Notices to Clearing Agency or Foreign Clearing Agency |
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13 | |
SECTION 2.15 |
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Definitive Notes |
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14 | |
SECTION 2.16 |
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Global Note |
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14 | |
SECTION 2.17 |
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Special Terms Applicable to Subsequent Transfers of Certain Notes |
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14 | |
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ARTICLE III |
COVENANTS OF ISSUER |
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17 | ||
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SECTION 3.1 |
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Payment of Principal and Interest |
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17 | |
SECTION 3.2 |
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Maintenance of Office or Agency |
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17 | |
SECTION 3.3 |
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Money for Note Payments to Be Held in Trust |
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17 | |
SECTION 3.4 |
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Existence |
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19 | |
SECTION 3.5 |
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Protection of Collateral |
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20 | |
SECTION 3.6 |
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Opinions as to Collateral |
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21 | |
SECTION 3.7 |
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Performance of Obligations: Servicing of Receivables |
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21 | |
SECTION 3.8 |
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Negative Covenants |
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23 | ||
SECTION 3.9 |
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Statements as to Compliance |
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23 | ||
SECTION 3.10 |
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Issuer May Not Consolidate |
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23 | ||
SECTION 3.11 |
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No Other Business |
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23 | ||
SECTION 3.12 |
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No Borrowing |
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24 | ||
SECTION 3.13 |
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Guarantees, Loans, Advances and Other Liabilities |
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24 | ||
SECTION 3.14 |
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Capital Expenditures |
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24 | ||
SECTION 3.15 |
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Removal of Administrator |
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24 | ||
SECTION 3.16 |
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Restricted Payments |
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24 | ||
SECTION 3.17 |
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Notice of Events of Default |
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24 | ||
SECTION 3.18 |
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Further Instruments and Acts |
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25 | ||
SECTION 3.19 |
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Tax Treatment |
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25 | ||
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ARTICLE IV |
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SATISFACTION AND DISCHARGE |
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25 | ||
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SECTION 4.1 |
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Satisfaction and Discharge of this Indenture |
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25 | ||
SECTION 4.2 |
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Application of Trust Money |
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26 | ||
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ARTICLE V |
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AMORTIZATION EVENTS, DEFAULTS AND REMEDIES |
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27 | ||
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SECTION 5.1 |
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Trust Amortization Events |
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27 | ||
SECTION 5.2 |
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Trust Events of Default |
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27 | ||
SECTION 5.3 |
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Acceleration of Maturity; Rescission and Annulment |
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28 | ||
SECTION 5.4 |
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Collection of Indebtedness and Suits for Enforcement by Indenture Trustee |
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29 | ||
SECTION 5.5 |
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Remedies; Priorities |
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30 | ||
SECTION 5.6 |
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Indenture Trustee May Enforce Claims Without Possession of Notes |
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32 | ||
SECTION 5.7 |
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Limitation on Suits |
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33 | ||
SECTION 5.8 |
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Unconditional Rights of Noteholders to Receive Principal and Interest |
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33 | ||
SECTION 5.9 |
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Restoration of Rights and Remedies |
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34 | ||
SECTION 5.10 |
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Rights and Remedies Cumulative |
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34 | ||
SECTION 5.11 |
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Delay or Omission Not Waiver |
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34 | ||
SECTION 5.12 |
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Rights of Noteholders to Direct Indenture Trustee |
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34 | ||
SECTION 5.13 |
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Waiver of Past Defaults |
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34 | ||
SECTION 5.14 |
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Undertaking for Costs |
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35 | ||
SECTION 5.15 |
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Waiver of Stay or Extension Laws |
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35 | ||
SECTION 5.16 |
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Sale of Receivables |
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35 | ||
SECTION 5.17 |
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Action on Notes |
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36 | ||
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ARTICLE VI |
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THE INDENTURE TRUSTEE |
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36 | ||
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SECTION 6.1 |
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Duties of the Indenture Trustee |
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36 | ||
SECTION 6.2 |
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Notice of Amortization Event or Trust Event of Default or Servicer Default |
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38 | ||
SECTION 6.3 |
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Rights of Indenture Trustee |
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39 | ||
SECTION 6.4 |
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Not Responsible for Recitals or Issuance of Notes |
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41 | ||
SECTION 6.5 |
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May Hold Notes |
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42 | ||
SECTION 6.6 |
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Money Held in Trust |
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42 | ||
SECTION 6.7 |
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Compensation, Reimbursement and Indemnification |
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42 | ||
SECTION 6.8 |
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Replacement of Indenture Trustee |
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43 | ||
SECTION 6.9 |
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Successor Indenture Trustee by Merger |
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44 | ||
SECTION 6.10 |
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Appointment of Co-Indenture Trustee or Separate Indenture Trustee |
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44 | ||
SECTION 6.11 |
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Eligibility; Disqualification |
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45 | ||
SECTION 6.12 |
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Preferential Collection of Claims Against Issuer |
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46 | ||
SECTION 6.13 |
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Representations and Covenants of the Indenture Trustee |
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46 | ||
SECTION 6.14 |
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Tax Returns |
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47 | ||
SECTION 6.15 |
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Custody of the Collateral |
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47 | ||
SECTION 6.16 |
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Communications Regarding Demands to Repurchase Receivables |
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48 | ||
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ARTICLE VII |
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NOTEHOLDERS LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER |
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49 | ||
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SECTION 7.1 |
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Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders |
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49 | ||
SECTION 7.2 |
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Preservation of Information; Communications to Noteholders |
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50 | ||
SECTION 7.3 |
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Reports by Issuer |
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50 | ||
SECTION 7.4 |
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Reports by Indenture Trustee |
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50 | ||
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ARTICLE VIII |
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ALLOCATION AND APPLICATION OF COLLECTIONS |
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51 | ||
SECTION 8.1 |
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Collection of Money |
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51 | ||
SECTION 8.2 |
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Rights of Noteholders |
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51 | ||
SECTION 8.3 |
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Establishment of Collection Account |
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51 | ||
SECTION 8.4 |
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Collections and Allocations |
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53 | ||
SECTION 8.5 |
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Directions Regarding Additional Withdrawals from the Collection Account |
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55 | ||
SECTION 8.6 |
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Release of Collateral; Eligible Loan Documents |
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55 | ||
SECTION 8.7 |
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Establishment of Reserve Account |
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55 | ||
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ARTICLE IX |
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DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS |
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55 | ||
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SECTION 9.1 |
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Distributions and Reports to Noteholders |
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55 | ||
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ARTICLE X |
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SUPPLEMENTAL INDENTURES AND AMENDMENTS |
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56 | ||
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SECTION 10.1 |
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Supplemental Indentures Without Consent of Noteholders |
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56 | ||
SECTION 10.2 |
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Supplemental Indentures With Consent of Noteholders |
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57 | ||
SECTION 10.3 |
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Direction to Indenture Trustee |
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58 | ||
SECTION 10.4 |
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Effect of Supplemental Indenture |
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59 | ||
SECTION 10.5 |
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Conformity with Trust Indenture Act |
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59 | ||
SECTION 10.6 |
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Amendments to Transaction Documents |
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59 | ||
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ARTICLE XI |
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TERMINATION |
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59 | ||
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SECTION 11.1 |
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Termination of Trust |
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59 | ||
SECTION 11.2 |
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Final Distribution |
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60 | ||
SECTION 11.3 |
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Transferors Termination Rights |
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60 | ||
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ARTICLE XII |
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MISCELLANEOUS |
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61 | ||
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SECTION 12.1 |
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Compliance Certificates |
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61 | ||
SECTION 12.2 |
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Form of Documents Delivered to Indenture Trustee |
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62 | ||
SECTION 12.3 |
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Acts of Noteholders |
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63 | ||
SECTION 12.4 |
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Notices |
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64 | ||
SECTION 12.5 |
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Notices to Noteholders; Waiver |
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65 | ||
SECTION 12.6 |
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Alternate Payment and Notice Provisions |
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65 | ||
SECTION 12.7 |
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Conflict with Trust Indenture Act |
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66 | ||
SECTION 12.8 |
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Effect of Headings and Table of Contents |
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66 | ||
SECTION 12.9 |
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Successors and Assigns |
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66 | ||
SECTION 12.10 |
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Separability |
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66 |
SECTION 12.11 |
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Benefits of Indenture |
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66 |
SECTION 12.12 |
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GOVERNING LAW |
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66 |
SECTION 12.13 |
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JURISDICTION |
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66 |
SECTION 12.14 |
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WAIVER OF JURY TRIAL |
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67 |
SECTION 12.15 |
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Counterparts |
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67 |
SECTION 12.16 |
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Trust Obligation |
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67 |
SECTION 12.17 |
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No Petition |
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67 |
SECTION 12.18 |
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Confidentiality |
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68 |
SECTION 12.19 |
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USA Patriot Act |
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68 |
SECTION 12.20 |
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Limitation on Owner Trustee Liability |
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68 |
ANNEX A - DEFINITIONS |
EXHIBIT A - FORM OF UNDERTAKING LETTER |
MASTER INDENTURE, dated as of December 20, 2017 (herein, as amended, modified or supplemented from time to time as permitted hereby, called the Indenture), among USCC MASTER NOTE TRUST, a Delaware statutory trust (together with its permitted successors and assigns, the Issuer), USCC SERVICES, LLC, a Delaware limited liability company, as Servicer (in such capacity, the Servicer), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as indenture trustee (herein, together with its successors in the trusts hereunder, called the Indenture Trustee). This Indenture may be supplemented at any time and from time to time by one or more Indenture Supplements in accordance with Article X hereof (each, an Indenture Supplement, and any Indenture Supplement together with this Indenture and amendments hereof and any supplemental indentures hereto collectively referred to as the Agreement). If a conflict exists between the terms and provisions of this Indenture and any Indenture Supplement, the terms and provisions of the Indenture Supplement shall be controlling with respect to the related Series.
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this Indenture to provide for its asset backed notes to be issued in one or more Series (the Notes) as provided in this Indenture.
In connection with one or more Series of Notes issued under this Indenture, the Issuer may enter into agreements with other entities that will provide credit enhancement or other protection and benefits for the Holders of a Series of Notes or a Class of such Series of Notes and the Issuer will incur obligations under the terms of such agreement. The Issuer, through this Indenture, wishes to provide security for such obligations to the extent and as provided in the relevant Indenture Supplements. All covenants and agreements made by the Issuer herein are for the benefit and security of the Noteholders and, to the extent and as provided for in the relevant Indenture Supplements, the Series Enhancers.
The Issuer is entering into this Indenture, and the Indenture Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. All things necessary have been done to make the Notes, when executed by the Issuer and authenticated and delivered by the Indenture Trustee hereunder and duly issued by the Issuer, the valid and binding obligations of the Issuer, and to make this Indenture a valid and binding agreement of the Issuer, in accordance with their and its terms.
Simultaneously with the delivery of this Indenture, the Issuer is entering into the Transfer and Servicing Agreement, pursuant to which (a) the Transferor will transfer, assign, set over and convey to the Issuer, on the Initial Closing Date and from time to time thereafter, all of its right, title and interest in, to and under the Receivables and Related Rights, which the Transferor will have acquired from the Seller pursuant to the Receivables Purchase Agreement, and (b) the Servicer has agreed to service the Receivables (and hold custody of the Custody Files) and make collections thereon on behalf of the Noteholders.
GRANTING CLAUSES
To secure the due and punctual payment by the Issuer of principal of (and premium, if any) and interest on the Notes, amounts due to Series Enhancers under the Series Enhancements as provided in the Indenture Supplements, and all other amounts due and payable under this Indenture or any Indenture Supplement or under any Series Enhancement (collectively, the Secured Obligations), when and as the same shall become due and payable, whether on demand for payment or on a Payment Date, or a Redemption Date, at a Stated Maturity Date or by declaration of acceleration, call for redemption or otherwise, according to the terms of this Indenture, the respective Indenture Supplements and the Notes or the Series Enhancements, the Issuer hereby Grants to the Indenture Trustee, for the benefit and security of the Noteholders and, to the extent and as provided for in the relevant Indenture Supplements, the Series Enhancers, all of the Issuers right, title and interest, whether now owned or hereafter acquired, in, to and under (a) the Receivables, (b) the Contracts, (c) Recoveries related thereto, (d) all other Related Rights and all money, instruments, investment property and other property (together with all earnings, dividends, distributions, income, issues, and profits relating to) distributed or distributable in respect of the Receivables pursuant to the terms of the Transfer and Servicing Agreement, this Indenture and any Indenture Supplement, (e) all Eligible Investments and all money, investment property, instruments and other property on deposit from time to time in, credited to or related to the Collection Account or any other Trust Account (including any subaccounts of such account), and in all interest, dividends, earnings, income and other distributions from time to time received, receivable or otherwise distributed or distributable thereto or in respect thereof (including any accrued discount realized on liquidation of any investment purchased at a discount), (f) all rights, remedies, powers, privileges and claims of the Issuer under or with respect to any Series Enhancement, the Transfer and Servicing Agreement, the Receivables Purchase Agreement and the Receivables Sale Agreement (whether arising pursuant to the terms of such Series Enhancement, the Transfer and Servicing Agreement, the Receivables Purchase Agreement or the Receivables Sale Agreement, or otherwise available to the Issuer at law or in equity), including, without limitation, the rights of the Issuer to enforce such Series Enhancement, the Transfer and Servicing Agreement, the Receivables Purchase Agreement or the Receivables Sale Agreement, and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to such Series Enhancement, the Transfer and Servicing Agreement, the Receivables Purchase Agreement or the Receivables Sale Agreement to the same extent as the Issuer could but for the assignment and security interest granted to the Indenture Trustee for the benefit of the Noteholders and, to the extent and as provided for in the relevant Indenture Supplements, the Series Enhancers, (g) all money, accounts, general intangibles, chattel paper, instruments, documents, goods, investment property, deposit accounts, certificates of deposit, letters of credit, and advices of credit belonging to the Issuer, (h) all other property of the Issuer, (i) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every, kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds, products, rents, receipts or profits of the conversion, voluntary or involuntary, into cash or other property, all cash and non-cash proceeds, and other property consisting of, arising from or relating to all or any part of any of the foregoing, and (j) any proceeds (including proceeds as defined in the UCC) of the foregoing; in each case, excluding payments made to the Transferor hereunder and all amounts distributable
to the Equity Certificateholder pursuant to the terms of any Transaction Document (collectively, the Collateral).
Such Grants are made in trust to secure the Notes equally and ratably without prejudice, priority or distinction, except as expressly provided in this Indenture and the Indenture Supplements, between any Note and any other Notes, and to secure the other Secured Obligations; provided, that unless and to the extent provided for in an Indenture Supplement for any Series, the security interest granted above in the Series Accounts and Series Enhancement for a particular Series shall be to secure the Notes for such Series only and, to the extent provided in the Indenture Supplement for such Series, the Series Enhancers. This Indenture is a security agreement within the meaning of the UCC. The Indenture Trustee as Indenture Trustee on behalf of the Noteholders acknowledges such Grants, accepts the trusts hereunder in accordance with the provisions hereof and agrees to perform the duties herein required to the end that the interests of the Noteholders may be adequately and effectively protected.
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal of (and premium, if any) and interest on the Notes and to the Series Enhancers under the Series Enhancements is limited by recourse only to the Collateral and only to the extent proceeds and distributions on the Collateral are allocated for their benefit under the terms of this Indenture, the Indenture Supplements and the Series Enhancements.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions Provisions.
(a) Unless defined elsewhere within, capitalized terms used in this Indenture shall have the meanings ascribed to them in (including by reference in) Annex A hereto. The definitions of such terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.
(b) With respect to any Series, all terms used herein and not otherwise defined herein shall have meanings ascribed to them in the Trust Agreement, the Transfer and Servicing Agreement or the related Indenture Supplement, as applicable.
(c) All terms defined in this Indenture shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.
(d) As used in this Indenture and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in this Indenture or in any such certificate or other document, and accounting terms partly defined in this Indenture or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles or regulatory accounting principles, as applicable, in the United States and as in effect on the date of this Indenture. To
the extent that the definitions of accounting terms in this Indenture or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles or regulatory accounting principles in the United States, the definitions contained in this Indenture or in any such certificate or other document shall control.
(e) Any reference to each Rating Agency shall only apply to any specific rating agency if such rating agency is then rating any Outstanding Series.
(f) Unless otherwise specified, references to any amount as on deposit or outstanding on any particular date shall mean such amount at the close of business on such day.
(g) The words hereof, herein and hereunder and words of similar import when used in this Indenture shall refer to this Indenture as a whole and not to any particular provision of this Indenture; references to any subsection, Section, Schedule or Exhibit are references to subsections, Sections, Schedules and Exhibits in or to this Indenture unless otherwise specified; and the term including means including without limitation.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act (TIA), such provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
Commission means the Securities and Exchange Commission.
indenture securities means the Notes.
indenture trustee means the Indenture Trustee.
obligor on the indenture securities means the Issuer and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by a Commission rule have the respective meanings assigned to them by such definitions.
While this Indenture is not qualified under the TIA and is not required to be qualified under the TIA, the Issuer desires that in certain instances this Indenture comply with the TIA. Accordingly, many provisions of the TIA have been incorporated in this Indenture.
ARTICLE II
THE NOTES
SECTION 2.1 Form Generally. Any Series or Class of Notes shall be issued in fully registered form (the Registered Notes) and shall be in substantially the form of an exhibit to the related Indenture Supplement with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or such Indenture Supplement, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note. The terms of any Notes set forth in an exhibit to the related Indenture Supplement are part of the terms of this Indenture, as applicable.
The Definitive Notes shall be typewritten, word processed, printed, lithographed or engraved or produced by any combination of these methods, all as determined by the officers executing such Notes, as evidenced by its execution of such Notes.
Each Global Note will be dated the Closing Date for the respective Series and each Definitive Note will be dated as of the date of its authentication.
SECTION 2.2 Denominations. Except as otherwise specified in the related Indenture Supplement and the Notes, each class of Notes of each Series shall be issued in fully registered form in minimum amounts of $100,000 and in integral multiples of $1,000 in excess thereof (except that one Note of each Class may be issued in a different amount, so long as such amount exceeds the applicable minimum denomination for such Class), and shall be issued upon initial issuance as one or more Notes in an aggregate original principal amount specified in the relevant Indenture Supplement for such Class or Series.
SECTION 2.3 Execution, Authentication and Delivery.
(a) Each Note shall be executed by manual or facsimile signature on behalf of the Issuer by an Authorized Officer of the Owner Trustee.
(b) Notes bearing the manual or facsimile signature of an individual who was, at the time when such signature was affixed, authorized to sign on behalf of the Issuer shall not be rendered invalid, notwithstanding the fact that such individual ceased to be so authorized prior to the authentication and delivery of such Notes or does not hold such office at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Indenture Trustee for authentication and delivery, and upon receipt of an Issuer Order the Indenture Trustee or its authenticating agent shall authenticate and deliver such Notes as provided in this Indenture or the related Indenture Supplement and not otherwise.
(d) No Note shall be entitled to any benefit under this Indenture or the applicable Indenture Supplement or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein or in the related Indenture Supplement executed by or on behalf of the Indenture Trustee or its authenticating agent by the manual signature of a duly authorized signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.4 Authenticating Agent.
(a) The Indenture Trustee may appoint one or more authenticating agents with respect to the Notes which shall be authorized to act on behalf of the Indenture Trustee in authenticating the Notes in connection with the issuance, delivery, registration of transfer, exchange or repayment of the Notes. Whenever reference is made in this Indenture to the authentication of Notes by the Indenture Trustee or the Indenture Trustees certificate of authentication, such reference shall be deemed to include authentication on behalf of the Indenture Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Indenture Trustee by an authenticating agent. Each authenticating agent must be acceptable to the Issuer and the Transferor. If no authenticating agent is appointed, the Indenture Trustee will be the authenticating agent for the Notes.
(b) Any institution succeeding to the corporate trust and agency business of an authenticating agent shall continue to be an authenticating agent without the execution or filing of any power or any further act on the part of the Indenture Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written notice of resignation to the Indenture Trustee, the Issuer and the Transferor. The Indenture Trustee may at any time terminate the agency of an authenticating agent by giving notice of termination to such authenticating agent and to the Issuer and the Servicer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time an authenticating agent shall cease to be acceptable to the Indenture Trustee, the Issuer and the Transferor, the Indenture Trustee may promptly appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating agent. No successor authenticating agent shall be appointed unless acceptable to the Issuer and the Transferor.
(d) The Issuer agrees to pay to each authenticating agent from time to time reasonable compensation for its services under this Section 2.4.
(e) Pursuant to an appointment made under this Section 2.4, the Notes may have endorsed thereon, in lieu of or in addition to the Indenture Trustees certificate of authentication, an alternative certificate of authentication in substantially the following form:
This is one of the Notes described in the within-mentioned Agreement.
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As Authenticating Agent |
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for the Indenture Trustee |
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By: |
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Authorized Signatory |
SECTION 2.5 Registration of and Limitations on Transfer and Exchange of Notes.
(a) The Issuer shall cause to be kept a register (the Note Register) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers of Notes. A Registrar (which may be the Indenture Trustee) (in such capacity, the Registrar) shall provide for the registration of Registered Notes and transfers and exchanges of Registered Notes as herein provided. The Registrar shall initially be the Indenture Trustee and any co-Registrar chosen by the Issuer and acceptable to the Indenture Trustee. Any reference in this Indenture to the Registrar shall include any co-Registrar unless the context requires otherwise. The Issuer may revoke such appointment and remove any Registrar if the Issuer determines in its sole discretion that such Registrar failed to perform its obligations under this Indenture in any material respect. Any Registrar shall be permitted to resign as Registrar upon thirty (30) days notice to the Issuer and the Indenture Trustee; provided, however, that such resignation shall not be effective and such Registrar shall continue to perform its duties as Registrar until the Issuer has appointed a successor Registrar reasonably acceptable to the Issuer. Upon any resignation of any Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of the Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the Issuer as Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Registrar and of the location, and any change in the location, of the Registrar. The Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and may rely upon a certificate executed on behalf of the Registrar by an officer thereof as to the names and addresses of the Noteholders and the principal amounts and numbers of such Notes.
(c) Upon surrender for registration of transfer or exchange of any Registered Note at the office or agency of the Registrar, to be maintained as provided in Section 3.2, if the requirements of Section 8-401(a) of the UCC are met, the Issuer shall execute, and upon receipt of such surrendered Note the Indenture Trustee shall authenticate and deliver to the Noteholder, in the name of the designated transferee or transferees, one or more new Notes (of the same Series and Class) in authorized denominations of like tenor and aggregate principal amount.
(d) At the option of a Noteholder, Notes may be exchanged for other Notes (of the same Series and Class) in any authorized denominations and of like tenor and aggregate principal amount, upon surrender of such Notes to be exchanged at the office or agency of the Registrar. Whenever any Notes are so surrendered for exchange, if the requirements of Section 8-401(a) of the UCC are met, the Issuer shall execute, and upon receipt of such surrendered Note the Indenture Trustee shall authenticate and deliver to the Noteholder, the Notes which the Noteholder making the exchange is entitled to receive.
(e) All Notes issued upon any registration of transfer or exchange of Notes shall evidence the same obligations, evidence the same debt, and be entitled to the same rights and privileges under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(f) Whenever any Notes are so surrendered for exchange, the Issuer shall execute and the Indenture Trustee or its authenticating agent shall authenticate and deliver the Notes which the Noteholder making the exchange is entitled to receive. Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in a form satisfactory to the Indenture Trustee or the Registrar duly executed by, the Noteholder thereof or their attorney-in-fact duly authorized in writing, and by such other documents as the Indenture Trustee may reasonably require.
(g) The registration of transfer of any Note shall be subject to the additional requirements, if any, set forth in the related Indenture Supplement.
(h) No service charge shall be made for any registration of transfer or exchange of Notes, but the Issuer and Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such transfer or exchange of such Notes.
(i) The preceding provisions of this Section 2.5 notwithstanding, the Issuer shall not be required to make, and the Registrar need not register, transfers or exchanges of Notes for a period of fifteen (15) days preceding the due date for any payment with respect to the Note.
(j) The Issuer will cause the Registrar to maintain at the Corporate Trust Office of the Indenture Trustee designated for such purpose, an office or agency where Notes may be surrendered for registration of transfer or exchange.
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (a) any mutilated Note is surrendered to the Registrar, or the Registrar receives evidence to its 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 Registrar such security or indemnity as may be required by it to hold the Issuer, the Registrar, the Indenture Trustee and any authenticating agent harmless, then, in the absence of notice to the Issuer, the Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser (as defined in the New York UCC), the Issuer shall execute, and the Indenture Trustee or its authenticating agent shall authenticate and the Registrar shall deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note of like tenor (including the same date of issuance) and aggregate principal amount, bearing a number not contemporaneously outstanding; provided, however, that if any such mutilated, destroyed, lost or stolen Note shall have become or within seven (7) days shall be due and payable, or shall have been selected or called for redemption, instead of issuing a replacement Note, the Issuer may pay such Note without surrender thereof, except that any mutilated Note shall be surrendered. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a protected purchaser (as defined in the New York UCC) of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a protected purchaser (as defined in the New York UCC) and
shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section 2.6, the Issuer or the Registrar may require the payment by the Holder of such Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the reasonable fees and expenses of the Indenture Trustee or the Registrar) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in replacement of any mutilated, destroyed, lost or stolen Note shall constitute complete and indefeasible evidence of an obligation of the Issuer, as if originally issued, whether or not the mutilated, destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.7 Persons Deemed Owners. Prior to due presentment for registration of transfer of any Note, the Registrar, the Issuer, the Paying Agent, the Indenture Trustee and any agent of the Transferor, the Issuer, the Paying Agent or the Indenture Trustee shall treat the Person in whose name any Note is registered as the owner of such Note for the purpose of receiving distributions pursuant to the terms of the applicable Indenture Supplement and for all other purposes whatsoever, whether or not such Note is overdue, and neither the Transferor, the Issuer, the Paying Agent, the Indenture Trustee nor any agent of the Transferor, the Issuer, the Paying Agent or the Indenture Trustee shall be affected by any notice to the contrary.
SECTION 2.8 Appointment of Paying Agent. The Paying Agent shall make distributions to Noteholders from the Collection Account or applicable Series Account pursuant to the provisions of the applicable Indenture Supplement and shall report the amounts of such distributions to the Issuer. Any Paying Agent shall have the revocable power to withdraw funds from the Collection Account or applicable Series Account for the purpose of making the distributions referred to above. The Issuer may revoke such power and remove the Paying Agent if the Issuer determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Indenture in any material respect. The Indenture Trustee shall be the Trusts initial Paying Agent. The Issuer reserves the right at any time to vary or terminate the appointment of a Paying Agent for the Notes, and to appoint additional or other Paying Agents, provided that it will at all times maintain the Indenture Trustee as a Paying Agent. In the event that any Paying Agent shall resign, the Issuer shall appoint a successor to act as Paying Agent. The Issuer shall cause each successor or additional Paying Agent to execute and deliver to the Issuer and the Indenture Trustee an instrument as described in Section 3.3(d). Any reference in this Indenture to the Paying Agent shall include any co-paying agent unless the context requires otherwise. For so long as the Indenture Trustee shall act as Paying Agent it shall be entitled to all of the same rights, protections, indemnities and immunities as the Indenture Trustee hereunder (but for the avoidance of doubt, not the obligations).
Notice of all changes in the identity or specified office of a Paying Agent will be delivered promptly to the Noteholders by the Indenture Trustee upon receipt of notice of such change by the Indenture Trustee.
SECTION 2.9 Access to List of Noteholders Names and Addresses.
(a) The Issuer will furnish or cause to be furnished to the Indenture Trustee, the Servicer, any Noteholder or the Paying Agent, within five (5) Business Days after receipt by the Issuer of a written request therefor from the Indenture Trustee, the Servicer, such Noteholder or the Paying Agent, respectively, a list of the names and addresses of the Noteholders. Unless otherwise provided in the related Indenture Supplement, holders of 25% of the Outstanding Amount of the Notes of any Series (the Applicants) may apply in writing to the Indenture Trustee, and if such application states that the Applicants desire to communicate with other Noteholders of any Series with respect to their rights under this Indenture or under the Notes and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Indenture Trustee, after having been adequately indemnified by such Applicants for its costs, liabilities and expenses, shall afford or shall cause the Registrar to afford such Applicants access during normal business hours to the most recent list of Noteholders held by the Indenture Trustee and shall give the Servicer notice that such request has been made, within five (5) Business Days after the receipt of such application. Such list shall be as of a date no more than forty-five (45) days prior to the date of receipt of such Applicants request.
(b) Every Noteholder, by receiving and holding a Note, agrees that none of the Issuer, the Indenture Trustee, the Registrar and the Servicer nor any of their respective agents and employees shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Noteholders hereunder, regardless of the sources from which such information was derived.
SECTION 2.10 Cancellation. All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by it. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any lawful manner whatsoever, and the Indenture Trustee shall promptly cancel all Notes so delivered, and shall cancel any Global Note upon its exchange in full for Definitive Notes and deliver a certificate of destruction to the Issuer. Such certificate shall also state that a certificate or certificates of each Foreign Clearing Agency referred to in the applicable Indenture Supplement was received with respect to each portion of the Global Note exchanged for Definitive Notes. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.10, except as expressly permitted by this Indenture. All cancelled Notes held by the Indenture Trustee shall be destroyed unless the Issuer shall direct by a timely order that they be returned to it.
SECTION 2.11 Release of Collateral. If the Indenture is or is required to be qualified under the TIA, the Indenture Trustee shall release Collateral from the lien of this Indenture, other than as permitted by Sections 8.6 and 12.1, only upon receipt of an Issuer
Request accompanied by an Officers Certificate, an Opinion of Counsel and (to the extent required by the TIA) Independent Certificates in accordance with TIA §§ 314(c) and 314(d)(1).
SECTION 2.12 New Issuances.
(a) The Issuer may from time to time issue one or more new Series of Notes (each such issuance a New Issuance) pursuant to one or more Indenture Supplements. The Notes of all outstanding Series shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Stated Maturity Date, all in accordance with the terms and provisions of this Indenture and the applicable Indenture Supplement except, with respect to any Series or Class, as provided in the related Indenture Supplement. The total principal amount of Notes that may be authenticated and delivered and Outstanding under this Indenture is not limited. Interest on the Notes of all outstanding Series shall be paid on the dates specified in or pursuant to the Indenture Supplement relating to such outstanding Series. Principal of the Notes of each outstanding Series shall be paid on the date specified in or pursuant to the Indenture Supplement relating to such outstanding Series.
(b) On or before the Series Issuance Date relating to any new Series of Notes, the parties hereto will execute and deliver an Indenture Supplement which will specify the Principal Terms of such new Series. The terms of such Indenture Supplement may modify or amend the terms of this Indenture solely as applied to such new Series. The Indenture Trustee shall execute the Indenture Supplement and the Issuer shall execute the Notes of such Series and deliver the Notes to the Indenture Trustee for authentication and delivery. The issuance of any such Notes of any new Series (other than the Series issued pursuant to the Indenture Supplement dated as of the date hereof) and the execution and delivery of the related Indenture Supplement shall be subject to the satisfaction of the following conditions:
(i) on or before the fifth (5th) day immediately preceding the Series Issuance Date the Issuer shall have given notice to the Indenture Trustee, the Owner Trustee, the Servicer and each Rating Agency, if any, that has rated any Series or Class within the applicable Group (unless such notice requirement is otherwise waived) of such issuance and the Series Issuance Date;
(ii) the Issuer shall have delivered to the Indenture Trustee and the Owner Trustee any related Indenture Supplement, in a form satisfactory to the Indenture Trustee and the Owner Trustee, executed by each party hereto (other than the Indenture Trustee) and specifying the relevant Principal Terms;
(iii) the Issuer shall have delivered to the Indenture Trustee any related Enhancement Agreement executed by each of the parties thereto, other than the Indenture Trustee and the Owner Trustee, as the case may be;
(iv) the Rating Agency Condition, if applicable, shall have been satisfied with respect to such issuance;
(v) the Issuer shall have delivered to the Indenture Trustee and the Owner Trustee an Officers Certificate, dated the Series Issuance Date to the effect that
(1) the Transferor reasonably believes that such issuance will not, based on the facts known to the Person executing such Officers Certificate, have an Adverse Effect or result in the occurrence of a Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default for any Series then Outstanding and (2) all conditions precedent to such issuance have been satisfied;
(vi) the Transferor Amount shall be greater than the Minimum Transferor Amount after giving effect to such issuance, and the Issuer shall have delivered to the Indenture Trustee an Officers Certificate of the Issuer to such effect;
(vii) the Issuer shall have delivered to the Indenture Trustee (with a copy to each Rating Agency, as applicable) a Tax Opinion, addressing the New Issuance; and
(viii) the Issuer shall have delivered to the Indenture Trustee and the Owner Trustee an Officers Certificate, dated the Series Issuance Date to the effect that no Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default for any Series then Outstanding has occurred and is continuing.
(c) Upon satisfaction of the above conditions (except with respect to the initial Series of Notes issued on the Initial Closing Date to which the above conditions do not apply), pursuant to Section 2.3, the Owner Trustee, on behalf of the Issuer, shall execute and upon receipt of an Issuer Order the Indenture Trustee or its authenticating agent shall authenticate and deliver the Notes of such Series as provided in this Indenture and the applicable Indenture Supplement. Notwithstanding the provisions of this Section 2.12, prior to the execution of any Indenture Supplement executed after the Initial Closing Date, the Indenture Trustee and the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such Indenture Supplement is authorized or permitted by this Indenture and any Indenture Supplement related to any outstanding Series and all conditions precedent to such execution have been satisfied. The Indenture Trustee and the Owner Trustee shall not be obligated to enter into any such Indenture Supplement which adversely affects the Indenture Trustees or the Owner Trustees own rights, duties or immunities under this Indenture.
(d) The net proceeds from the New Issuance of any new Series of Notes or the increase in the Invested Amount of any Series of Notes, first, shall be deposited into the Excess Funding Account such that the Transferor Amount is not less than the Minimum Transferor Amount (if and to the extent necessary), and, second, shall be paid to the Equity Certificateholder (or, to the extent requested by the Equity Certificateholder, deposited into the Excess Funding Account).
SECTION 2.13 Book-Entry Notes. Unless otherwise provided in any related Indenture Supplement, the Notes, upon original issuance, shall be issued in the form of one or more Global Notes representing the Book-Entry Notes to be delivered to the depository specified in such Indenture Supplement, which shall be the Clearing Agency or Foreign Clearing Agency, by or on behalf of the Issuer.
The Notes of each Series shall, unless otherwise provided in the related Indenture Supplement, initially be registered in the Note Register in the name of the nominee of the Clearing Agency or Foreign Clearing Agency for such Book-Entry Notes and shall be delivered to the Indenture Trustee or, pursuant to such Clearing Agencys or Foreign Clearing Agencys instructions held by the Indenture Trustees agent as custodian for the Clearing Agency or Foreign Clearing Agency.
Unless and until Definitive Notes are issued under the limited circumstances described in Section 2.15, no Beneficial Owner shall be entitled to receive a Definitive Note representing such Beneficial Owners interest in such Note. Unless and until Definitive Notes have been issued to the Beneficial Owners pursuant to Section 2.15:
(a) the provisions of this Section 2.13 shall be in full force and effect with respect to each such Series;
(b) the Issuer, the Transferor, the Indenture Trustee and the Paying Agent shall be entitled to deal with the Clearing Agency or Foreign Clearing Agency and the Clearing Agency Participants for all purposes of this Indenture (including the payment of principal of and interest on the Notes of each such Series) as the authorized representatives of the Beneficial Owners;
(c) to the extent that the provisions of this Section 2.13 conflict with any other provisions of this Indenture, the provisions of this Section 2.13 shall control with respect to each such Series;
(d) the rights of Beneficial Owners of each such Series shall be exercised only through the Clearing Agency or Foreign Clearing Agency and the applicable Clearing Agency Participants and shall be limited to those established by law and agreements between such Beneficial Owners and the Clearing Agency or Foreign Clearing Agency and/or the Clearing Agency Participants. Pursuant to the depository agreement applicable to a Series, unless and until Definitive Notes of such Series are issued pursuant to Section 2.15, the initial Clearing Agency shall make book-entry transfers among the Clearing Agency Participants and receive and transmit distributions of principal and interest on the Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken based upon instructions or directions of the Holders of Notes evidencing a specified percentage of the Outstanding Amount of the Notes, the Clearing Agency or Foreign Clearing Agency shall be deemed to represent such percentage only to the extent that they have received instructions to such effect from the Beneficial Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Notes and has delivered such instructions to the Indenture Trustee.
SECTION 2.14 Notices to Clearing Agency or Foreign Clearing Agency. Whenever a notice or other communication to the Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to Beneficial Owners pursuant to Section 2.15, the Indenture Trustee shall give all such notices and communications specified
herein to be given to Noteholders to the Clearing Agency or Foreign Clearing Agency, as applicable, and shall have no obligation to the Beneficial Owners.
SECTION 2.15 Definitive Notes. If (a)(i) the Clearing Agency or Foreign Clearing Agency is no longer willing or able to properly discharge its responsibilities as Clearing Agency or Foreign Clearing Agency with respect to the Book-Entry Notes of a given Class and (ii) the Servicer is unable to locate and reach an agreement on satisfactory terms with a qualified successor, or (b) the Servicer elects to terminate the book-entry system through the Clearing Agency or Foreign Clearing Agency with respect to such Class, the Servicer shall notify the Indenture Trustee and all Beneficial Owners of such Class of the occurrence of such event and of the availability of Definitive Notes to Beneficial Owners of such Class requesting the same. Upon surrender to the Indenture Trustee of the Notes of such Class, accompanied by registration instructions from the applicable Clearing Agency, the Issuer shall execute and the Indenture Trustee shall authenticate Definitive Notes of such Class and shall recognize the registered holders of such Definitive Notes as Noteholders under this Indenture. Neither the Issuer nor the Indenture Trustee shall be liable for any delay in delivery of such instructions, and the Issuer and the Indenture Trustee may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes of such Series, all references herein to obligations imposed upon or to be performed by the applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be imposed upon and performed by the Indenture Trustee, to the extent applicable with respect to such Definitive Notes, and the Indenture Trustee shall recognize the registered holders of the Definitive Notes of such Series as Noteholders of such Series hereunder. Definitive Notes will be transferable and exchangeable at the offices of the Registrar.
SECTION 2.16 Global Note. If specified in the related Indenture Supplement for any Series or Class, Notes for such Series or Class may be initially issued in the form of a single temporary global Note (the Global Note), without interest coupons, in the denomination of the entire aggregate principal amount of such Series or Class and substantially in the form set forth in the exhibit with respect thereto attached to the related Indenture Supplement. The Global Note will be executed by the Issuer and authenticated by the Indenture Trustee at the written direction of the Issuer upon the same conditions, in substantially the same manner and with the same effect as the Definitive Notes. The Global Note may be exchanged for Registered Notes in definitive form, as provided in the related Indenture Supplement.
SECTION 2.17 Special Terms Applicable to Subsequent Transfers of Certain Notes.
(a) The Notes have not been registered under the Securities Act or the securities laws of any other jurisdiction. Consequently, the Notes are not transferable other than pursuant to an exemption from the registration requirements of the Securities Act and satisfaction of certain other provisions specified herein or in the related Indenture Supplement. No sale, pledge or other transfer of any Note (or interest therein) after the date thereof may be made by any Person unless either such sale, pledge or other transfer (i) is otherwise made in a transaction exempt from the registration requirements of the Securities Act, in which case (A) the Indenture Trustee shall require that both the prospective transferor and the prospective transferee certify to the Indenture Trustee and the Transferor in writing the facts surrounding
such transfer, which certification shall be in substantially the form attached to the applicable Indenture Supplement (or the relevant note purchase agreement relating to such Indenture Supplement) or otherwise in form and substance satisfactory to the Indenture Trustee (acting at the direction of the Administrator) and the Transferor, and (B) the Indenture Trustee may require a written Opinion of Counsel (which shall not be at the expense of the Transferor, the Servicer or the Indenture Trustee) satisfactory to the Transferor and the Indenture Trustee to the effect that such transfer will not violate the Securities Act and (ii) satisfies the restrictions on transfer set forth in the applicable Indenture Supplement. Neither the Transferor nor the Indenture Trustee shall be obligated to register any Notes under the Securities Act, qualify any Notes under the securities laws of any state or provide registration rights to any purchaser or holder thereof. Notwithstanding anything contained in this Indenture or any Indenture Supplement to the contrary, neither the Indenture Trustee nor the Registrar, as the case may be, shall be responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the Securities Act, applicable state securities laws, ERISA, the Code or the Investment Company Act.
(b) (i) Unless otherwise provided in the related Indenture Supplement, the Notes may not be acquired by or for the account of a Benefit Plan and, by accepting and holding a Note, the Holder thereof shall be deemed to have represented and warranted that it is not such an entity and, if requested to do so by the Transferor or the Indenture Trustee, the Holder of a Note shall execute and deliver to the Indenture Trustee an undertaking letter in the form set forth in Exhibit A. In the event the related Indenture Supplement provides that the Notes may be acquired by or for the account of a Benefit Plan, the purchase, holding and disposition of such Note (or interest therein) by a Benefit Plan will be deemed a representation and warranty that such purchase, holding and disposition of the Notes will not result in a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
(ii) If so provided in the Indenture Supplement, if the Holder of such Notes is a Plan, including any fiduciary acquiring the Notes on behalf of a Plan (Plan Fiduciary), the purchase, holding and disposition of such Note (or interest therein) by such Holder will be deemed a representation and warranty that:
(A) if any of the Issuer, the sponsor, any initial purchaser, any placement agent or any of their respective affiliated entities (the Transaction Parties), has provided or will provide advice with respect to the acquisition of the Notes by the Plan, it has or will provide such advice only to the Plan Fiduciary which is independent of the Transaction Parties, and the Plan Fiduciary either:
(1) is a bank as defined in Section 202 of the Investment Advisers Act of 1940 (the Advisers Act), or similar institution that is regulated and supervised and subject to periodic examination by a State or Federal agency;
(2) is an insurance carrier which is qualified under the laws of more than one state to perform the services of managing, acquiring or disposing of assets of a Plan;
(3) is an investment adviser registered under the Advisers Act, or, if not registered as an investment adviser under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisers Act, is registered as an investment adviser under the laws of the state in which it maintains its principal office and place of business;
(4) is a broker-dealer registered under the Exchange Act; or
(5) has, and at all times that the Plan is invested in the Notes will have, total assets of at least U.S. $50,000,000 under its management or control (provided that this clause (5) shall not be satisfied if the Plan Fiduciary is either (X) the owner or a relative of the owner of an investing IRA or (Y) a participant or beneficiary or relative of such participant or beneficiary of the Plan investing in the Notes in such capacity);
(B) the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, including the acquisition by the Plan of the Notes;
(C) the Plan Fiduciary is a fiduciary with respect to the Plan within the meaning of Section 3(21) of ERISA, Section 4975 of the Code, or both, and is responsible for exercising independent judgment in evaluating the Plans acquisition of the Notes;
(D) none of the Transaction Parties has exercised any authority to cause the Plan to invest in the Notes or to negotiate the terms of the Plans investment in the Notes; and
(E) the Plan Fiduciary has been informed by the Transaction Parties: (X) that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity in connection with the Plans acquisition of the Notes; and (Y) of the existence and nature of the Transaction Parties financial interests in the Plans acquisition of the Notes.
The representations in this Section 2.17(b)(ii) are intended to comply with the DOLs Reg. Sections 29 C.F.R. 2510.3-21(a) and (c)(1) as promulgated on April 8, 2016 (81 Fed. Reg. 20,997). If these regulations are revoked, repealed or no longer effective, these representations shall be deemed to be no longer in effect.
ARTICLE III
COVENANTS OF ISSUER
SECTION 3.1 Payment of Principal and Interest.
(a) The Issuer will duly and punctually pay principal and interest in accordance with the terms of the Notes as specified in the relevant Indenture Supplement.
(b) The Noteholders of a Series as of the Record Date in respect of a Payment Date shall be entitled to the interest accrued and payable and principal payable on such Payment Date as specified in the related Indenture Supplement. All payment obligations under a Note are discharged to the extent such payments are made to the Noteholder of record.
SECTION 3.2 Maintenance of Office or Agency. The Issuer will maintain an office or agency at the Corporate Trust Office of the Indenture Trustee designated for such purpose where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee, to serve as its agent for the foregoing purposes. The Issuer will give prompt written notice to the Transferor, the Indenture Trustee, the Servicer and the Noteholders of the location, and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee at its Corporate Trust Office as its agent to receive all such presentations, surrenders, notices and demands.
SECTION 3.3 Money for Note Payments to Be Held in Trust.
(a) As specified in Section 8.3 herein and in the related Indenture Supplement, all payments of amounts due and payable with respect to the Notes which are to be made from amounts withdrawn from the Collection Account or any Series Account shall be made on behalf of the Issuer by the Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from the Collection Account or any Series Account shall be paid over to the Issuer except as provided in this Indenture or in the related Indenture Supplement.
(b) On or before the Business Day prior to each Payment Date, in accordance with Section 8.4, the Issuer shall deposit or cause to be deposited in the Series Account, specified in the related Indenture Supplement, of each outstanding Series an aggregate sum sufficient to pay the amounts then becoming due under the Notes of such outstanding Series, such sum to be held in the Series Account for the benefit of the Persons entitled thereto, and (unless the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee in writing of its action or failure so to act.
(c) Whenever the Issuer shall have a Paying Agent in addition to the Indenture Trustee, it will, on or before the Business Day next preceding each Payment Date, direct in writing the Indenture Trustee to deposit with such Paying Agent on or before such Payment Date an aggregate sum sufficient to pay the amounts then becoming due, such sum to be (i) held in trust for the benefit of Persons entitled thereto and (ii) invested, pursuant to an Issuer Order, by the Paying Agent in an Eligible Investment in accordance with the terms of this
Indenture and the related Indenture Supplement; provided that if the Issuer fails to specify in an Issuer Order the Eligible Investments in which such sums shall be invested and the percentage of funds to be invested in each Eligible Investment, such sums will remain uninvested. For all investments made by a Paying Agent under this Section 3.3, such Paying Agent shall be entitled to all of the rights and obligations of the Indenture Trustee under the related Indenture Supplement, such rights and obligations being incorporated in this paragraph by this reference.
(d) The Issuer will cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Issuer and the Indenture Trustee an instrument in which such Paying Agent shall agree with the Issuer (and if the Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of this Section 3.3, that such Paying Agent, in acting as Paying Agent, is an express agent of the Issuer and, further, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(ii) give to a Responsible Officer of the Indenture Trustee written notice of any default by the Issuer (or any other obligor upon the Notes) of which it has actual knowledge in the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of Notes if at any time it ceases to meet the standards required to be met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon in respect of federal income taxes due from the Beneficial Owners or Noteholders (if the Notes are Definitive Notes) and with respect to any applicable reporting requirements in connection therewith.
(e) The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money.
(f) Subject to applicable laws with respect to escheat of funds, and after such notice required with respect to Notes not surrendered for cancellation pursuant to Section 11.2(b) is given, any money held by the Indenture Trustee or any Paying Agent in trust for the payment
of any amount due with respect to any Note remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust, and the Indenture Trustee or such Paying Agent, as the case may be, shall give prompt notice of such occurrence to the Issuer and shall release such money to the Issuer on Issuer Order; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer (and then only to the extent of the amounts so paid to the Issuer) for payment thereof, and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Indenture Trustee or such Paying Agent, before being required to make any such repayment, shall at the written direction of the Issuer cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. The cost of any such notice or publication shall be paid out of funds in the Collection Account or any Series Account held for the benefit of the Noteholders, or to the extent such funds are insufficient, by the Issuer or the Servicer. The Indenture Trustee shall also adopt and employ, at the expense of the Issuer, any other reasonable means of notification of such repayment (including, but not limited to, delivering (in the case of Global Notes) or mailing notice of such repayment to Holders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in moneys due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent, at the last address of record for each such Holder).
(g) The Issuer represents, warrants and covenants to the Indenture Trustee and the Paying Agent that, (i) to the best of the Issuers knowledge, the Indenture Trustee and Paying Agent are not obligated in respect of any payments to be made by the Issuer pursuant to this Indenture, to make any withholding or deduction pursuant to any FATCA Withholding Tax, provided such parties have obtained the requisite information about the Noteholders; (ii) the Noteholders are required to provide information sufficient to eliminate the imposition of, or determine the amount of, FATCA Withholding Tax (the FATCA Information) to the Issuer, the Indenture Trustee and any Paying Agent, (iii) the Issuer shall comply with all requirements of the Code with respect to the withholding from any payment made by it on any Note of any applicable FATCA Withholding Tax imposed thereon and with respect to any applicable reporting requirement in connection therewith; and (iv) to the extent the Issuer determines that FATCA Withholding Tax is applicable, it will promptly notify the Indenture Trustee and the Paying Agent of such fact. To the extent the Issuer has the Noteholders information the Issuer will provide the FATCA Information to the Indenture Trustee and the Paying Agent upon request. Each holder of a Note or an interest therein, by acceptance of such Note or such interest in such Note, will be deemed to have agreed to provide the Issuer, the Indenture Trustee, the Note Registrar and the Paying Agent with the Noteholder Tax Identification Information and, to the extent FATCA Withholding Tax is applicable, the FATCA Information. In addition, each holder of a Note will be deemed to understand that the Paying Agent has the right to withhold interest payable with respect to the Note (without any corresponding gross-up) on any beneficial owner of an interest in a Note that fails to comply with the foregoing requirements.
SECTION 3.4 Existence. The Issuer will keep in full effect its existence, rights and franchises as a statutory trust under the laws of the State of Delaware (unless it becomes, or any
successor Issuer hereunder is or becomes, organized under the laws of any other state or of the United States of America, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Collateral and each other related instrument or agreement included in the Collateral.
SECTION 3.5 Protection of Collateral. (a) The Issuer will from time to time take all actions necessary or advisable, including without limitation preparing, or causing to be prepared, executing, delivering and filing or causing to be filed all such supplements and amendments hereto and all such financing statements, continuation statements, amendments to financing statements, instruments of further assurance and other instruments to:
(i) Grant more effectively all or any portion of the Collateral as security for the Notes;
(ii) maintain or preserve the Lien and security interest (and the priority thereof) of this Indenture or to carry out more effectively the purposes hereof;
(iii) perfect, maintain perfection, publish notice of, or protect the validity of any Grant made or to be made by this Indenture;
(iv) enforce any of the Collateral; or
(v) preserve and defend title to the Collateral securing the Notes and the rights therein of the Indenture Trustee and the Noteholders secured thereby against the claims of all Persons and parties.
(b) Authorization to File. The Issuer hereby authorizes the filing of financing statements in all appropriate jurisdictions describing the Collateral as all assets of the Issuer as debtor or words of similar effect, or being of equal or lesser scope or with greater detail. In addition, (i) the Issuer authorizes the Indenture Trustee and the Administrator to file the initial financing statements on or about the Initial Closing Date (along with any other financing statements to be filed from time to time in connection with the Transaction Documents), and (ii) the Indenture Trustee, as secured party, authorizes the Administrator to file continuation statements, and amendments to the financing statements, in each case in the jurisdictions and with the filing offices as the Administrator or the Indenture Trustee (upon the advice of counsel) may determine necessary or advisable to perfect the Indenture Trustees interest in the Collateral. The Administrator (or the Indenture Trustee solely to the extent it has elected to so prepare and file) shall timely prepare and file the foregoing and will promptly deliver to the Issuer and the Indenture Trustee file-stamped copies of, or filing receipts for, any financing statement, continuation statement and amendment to a previously filed financing statement.
(c) The Indenture Trustee hereby authorizes and designates the Administrator its agent and attorney-in-fact to execute any financing statement, amendment to a financing statement or continuation statement or other instrument required pursuant to this Section 3.5.
(d) The Indenture Trustee is not obligated to (i) make a determination of whether filing financing or continuation statements, or amendments to the statements is required or (ii) monitor or file any financing or continuation statements, or amendments to the statements, and will not be liable for failure to do so.
SECTION 3.6 Opinions as to Collateral.
(a) On the Series Issuance Date relating to any new Series of Notes, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel (with a copy to each Rating Agency, as applicable) either stating that, in the opinion of such counsel, such action has been taken to perfect the Lien of this Indenture, including without limitation with respect to the recording and filing of this Indenture, any indentures supplemental hereto, and any other requisite documents, and with respect to the filing of any financing statements and continuation statements and amendments to financing statements or continuation statements, in such jurisdictions as are so necessary and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to maintain the perfection of such Lien.
(b) On or before September 30 in each calendar year, beginning in 2018, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken to perfect the Lien of this Indenture in the Receivables, including with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and amendments to financing statements as is so necessary, or, stating that in the opinion of such counsel no such action is necessary to maintain the perfection of such lien and security interest. Such Opinion of Counsel shall also describe the filing of any financing statements and amendments to financing statements that will, in the opinion of such counsel, be required to maintain the perfection of the Lien of this Indenture until September 30 in the following calendar year. The cost of each such Opinion of Counsel required under this Section 3.6 shall be an expense of the Issuer and shall not be at the expense of the Indenture Trustee.
SECTION 3.7 Performance of Obligations: Servicing of Receivables.
(a) The Issuer will not take any action and will use its best efforts not to permit any action to be taken by others that would release any Person from any of such Persons material covenants or obligations under any instrument or agreement included in the Collateral or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in this Indenture, the Transfer and Servicing Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officers Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Servicer and the Administrator to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its obligations and agreements contained in this Indenture, the other Transaction Documents and in the instruments and agreements relating to the Collateral, including but not limited to preparing or causing to be prepared, and filing or causing to be filed all UCC financing statements and continuation statements and amendments to financing statements or continuation statements required to be filed by the terms of this Indenture and the Transfer and Servicing Agreement.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer Default under the Transfer and Servicing Agreement, the Issuer shall promptly notify the Transferor, the Indenture Trustee, and the Rating Agencies (as applicable) in writing thereof, and shall specify in such notice the action, if any, being taken with respect to such default. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Transfer and Servicing Agreement with respect to the Collateral, the Issuer shall take all reasonable steps available to it to remedy such failure.
(e) Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Indenture or the rights of the Indenture Trustee, acting at the direction of the Holders of Outstanding Notes evidencing more than 66-2/3% of the Outstanding Amount of the Notes of each adversely affected Series, the Issuer agrees (i) that it will not, without the prior written consent of the Indenture Trustee and satisfaction of the Rating Agency Condition, if applicable, amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any Transaction Document (except to the extent otherwise provided in the Transaction Documents), or waive timely performance or observance by the Servicer under the Transfer and Servicing Agreement, the Seller under the Receivables Purchase Agreement or an Originator under the Receivables Sale Agreement, USCC under the Performance Guaranty or USCC Services under the Administration Agreement; and (ii) that any such amendment shall not (A) increase or reduce in any manner the amount of, or accelerate or delay the timing of, distributions that are required to be made for the benefit of the Noteholders, except as provided in the Transfer and Servicing Agreement, or (B) reduce the percentage of the Holders of the principal amount of Outstanding Notes that, by the terms of the Transaction Documents, is required to consent to any such amendment, without the consent of the Holders of all the Notes. If any such amendment, modification, supplement or waiver shall be so consented to by the Indenture Trustee and such Noteholders, the Issuer agrees, promptly following a request by the Indenture Trustee to do so, to execute and deliver, in its own name and at its own expense, such agreements, instruments, consents and other documents as the Indenture Trustee may deem necessary or appropriate in the circumstances.
(f) The Servicer will perform its servicing obligations in the manner set forth in the Transfer and Servicing Agreement, this Indenture, each Indenture Supplement and the other Transaction Documents.
(g) Each Receivables Schedule and Contract Additions Report, as the same may be supplemented or amended from time to time, shall constitute a part of this Indenture and is incorporated herein for all purposes.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding, the Issuer will not:
(a) sell, transfer, exchange, pledge or otherwise dispose of any part of the Collateral except as expressly permitted by this Indenture and any Indenture Supplement, the Trust Agreement or the Transfer and Servicing Agreement;
(b) claim any credit on, or make any deduction from, the principal and interest payable in respect of the Notes (other than amounts properly withheld from payments under the Code or applicable state law) or assert any claim against any present or former Noteholder by reason of the payment of any taxes levied or assessed upon any part of the Collateral.
(c) incur, assume or guarantee any direct or contingent indebtedness other than as contemplated by the Transaction Documents;
(d) (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (ii) permit any Lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Collateral or any part thereof or any interest therein or the proceeds thereof or (iii) permit the lien of this Indenture not to constitute a valid first priority security interest in the Collateral; or
(e) voluntarily dissolve or liquidate in whole or in part.
SECTION 3.9 Statements as to Compliance. The Issuer will deliver to the Indenture Trustee, commencing in 2019, within ninety (90) days after the end of each fiscal year of the Issuer, an Officers Certificate stating, as to the Authorized Officer signing such Officers Certificate, that:
(a) a review of the activities of the Issuer during the 12-month period ending at the end of such fiscal year (or in the case of the fiscal year ending December 31, 2018, the period from the Initial Closing Date to December 31, 2018) and of performance under this Indenture has been made under such Authorized Officers supervision, and
(b) to the best of such Authorized Officers knowledge, based on such review, the Issuer has complied with all conditions and covenants under this Indenture throughout such year, or, if there has been a default in the compliance of any such condition or covenant, specifying each such default known to such Authorized Officer and the nature and status thereof.
SECTION 3.10 Issuer May Not Consolidate. The Issuer shall not consolidate or merge with or into any other Person.
SECTION 3.11 No Other Business. The Issuer shall not engage in any business other than the purpose and powers set forth in Section 2.03 of the Trust Agreement and all activities incidental thereto.
SECTION 3.12 No Borrowing. The Issuer shall not issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness except as expressly provided for pursuant to the terms of the Transaction Documents and the Notes.
SECTION 3.13 Guarantees, Loans, Advances and Other Liabilities. Except as contemplated by the Trust Agreement, this Indenture or the Transfer and Servicing Agreement or any Indenture Supplement, the Issuer shall not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring anothers payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person.
SECTION 3.14 Capital Expenditures. The Issuer shall not make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty).
SECTION 3.15 Removal of Administrator. So long as any Notes are outstanding, the Issuer shall not remove the Administrator without cause unless the Rating Agency Condition, if applicable, shall have been satisfied in connection with such removal.
SECTION 3.16 Restricted Payments. Except as provided for in this Indenture or in any other Transaction Document, the Issuer shall not, directly or indirectly, (a) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest of the Issuer, (b) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or (c) set aside or otherwise segregate any amounts for any such purpose; provided, however, that the Issuer may make, or cause to be made, (i) distributions as contemplated by, and to the extent funds are available for such purpose under, the Transfer and Servicing Agreement or the Trust Agreement and (ii) payments to the Indenture Trustee pursuant to Section 6.7 hereof. The Issuer will not, directly or indirectly, make payments to or distributions from the Collection Account except in accordance with the Transaction Documents.
SECTION 3.17 Notice of Events of Default. After an Authorized Officer of the Issuer, the Servicer or the Administrator, as applicable, has actual knowledge of any Event of Default, the Issuer, the Servicer or the Administrator, as applicable, agrees to give the Indenture Trustee and the Rating Agencies (with respect to any Series or Class of Notes, as applicable, rated by any such Rating Agency) prompt written notice thereof hereunder and, immediately after obtaining actual knowledge of any of the following occurrences, written notice of each default on the part of the Servicer or the Transferor of its obligations under the Transfer and Servicing Agreement, each default on the part of the Seller of its obligations under the Receivables Purchase Agreement and each default on the part of an Originator of its obligations under the Receivables Sale Agreement. Upon receipt of such notice by its Responsible Officer, the Indenture Trustee shall promptly provide written notice of such Event of Default to the Noteholders.
SECTION 3.18 Further Instruments and Acts. Upon request of the Indenture Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.
SECTION 3.19 Tax Treatment.
(a) Unless otherwise specified in the applicable Indenture Supplement with respect to a particular Series, the Issuer has entered into this Indenture, and the Notes will be issued, with the intention that, for U.S. federal, state and local income and franchise tax purposes, (i) the Notes (other than any Notes, if any, retained by the Issuer or a Person that is considered the same Person as the Issuer for U.S. federal income tax purposes) will qualify as indebtedness secured by the Receivables and (ii) the Issuer shall not be treated as an association or publicly traded partnership taxable as a corporation. The Issuer, by entering into this Indenture, and each Noteholder, by the acceptance of any such Note (and each owner of an interest in a Note, by its acceptance of an interest in the applicable Note), agree to treat such Notes for U.S. federal, state and local income and franchise tax purposes as indebtedness of the Issuer. The provisions of this Indenture shall be construed in furtherance of the foregoing intended tax treatment.
(b) On or before the date on which it acquires a Note (or interest therein) and thereafter promptly upon request, each Noteholder and each owner of an interest in a Note shall provide to the Indenture Trustee, Paying Agent and/or the Issuer (or other person responsible for withholding of taxes, including but not limited to FATCA Withholding Tax, or delivery of information under FATCA) with Tax Identification Information. Further, each Noteholder and each owner of an interest in a Note is deemed to understand that the Issuer, Indenture Trustee and Paying Agent have the right to withhold interest payable with respect to the Note (without any corresponding gross-up) on any beneficial owner of an interest in a Note that fails to comply with the preceding sentence.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of this Indenture. This Indenture shall cease to be of further effect with respect to the Notes except as to (a) rights of registration of transfer and exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c) the rights of Noteholders to receive payments of principal thereof and interest thereon, (d) Sections 3.3, 3.7, 3.8, 3.11, and 12.14, (e) the rights and immunities of the Indenture Trustee hereunder, including the rights of the Indenture Trustee under Section 6.7, and the obligations of the Indenture Trustee under Section 4.2, and (f) the rights of Noteholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee and payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Notes when:
(i) either:
(A) all Notes theretofore authenticated and delivered (other than (1) Notes which have been destroyed, lost or stolen and which have been replaced, or paid as provided in Section 2.6, and (2) Notes for whose full payment money has theretofore been deposited in trust or segregated and held in trust by the Indenture Trustee thereafter repaid to the Issuer or discharged from such trust, as provided in Section 3.3) have been delivered to the Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Indenture Trustee for cancellation:
(1) have become due and payable;
(2) will become due and payable on their respective stated final maturity dates within one year; or
(3) are to be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption by the Indenture Trustee in the name, and at the expense, of the Issuer;
and the Issuer, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash in trust for such purpose, in an amount sufficient without consideration of any reinvestment to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation when due;
(ii) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an Officers Certificate of the Issuer and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Indenture Trustee under Section 6.7 and of the Indenture Trustee to the Noteholders under Section 4.2 shall survive.
SECTION 4.2 Application of Trust Money. All monies deposited with the Indenture Trustee pursuant to Section 3.3 hereof shall be held in an account with a corporate trust department and applied by it, in accordance with the provisions of this Indenture and the applicable Indenture Supplement, to make payments, either directly or through any Paying Agent, to the Noteholders and for the payment in respect of which such monies have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and interest; but such monies need not be segregated from other funds except to the extent required herein or in the Transfer and Servicing Agreement or required by law.
ARTICLE V
AMORTIZATION EVENTS, DEFAULTS AND REMEDIES
SECTION 5.1 Trust Amortization Events.
(a) The occurrence of a Trust Event of Default will constitute an Amortization Event for all Series (a Trust Amortization Event). Upon the occurrence of a Trust Amortization Event, then an Amortization Event with respect to all Series of Notes shall occur without any notice or other action on the part of the Indenture Trustee or the Noteholders immediately upon the occurrence of such event.
(b) Upon the occurrence of an Amortization Event, an Amortization Period, or, if so specified on the related Indenture Supplement, an Accumulation Period, shall commence and payment on the Notes of each Series will be made in accordance with the terms of the related Indenture Supplement.
SECTION 5.2 Trust Events of Default.
Trust Event of Default, wherever used herein, means any one of the following events (whatever the reason for such Trust Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) An Insolvency Event with respect to the Issuer or the Transferor shall have occurred;
(b) default in the payment of any interest on any Note of any Series or Class of Notes when the same becomes due and payable and such default shall continue for a period of ten (10) Business Days;
(c) default in the payment of the principal of any Note, if and to the extent not previously paid, when the same becomes due and payable on its Stated Maturity Date;
(d) default in the performance or observance of (i) any covenant or agreement of the Issuer made in this Indenture in respect of the Notes of all Series, even if such default does not affect all Series (other than a covenant or agreement, a default in the performance or observance of which is elsewhere in this Section 5.2 specifically dealt with) (all of such covenants and agreements in this Indenture which are not expressly stated to be for the benefit of a particular Series shall be considered to be for the benefit of the Notes of all Series), or (ii) any representation or warranty of the Issuer made in this Indenture for the benefit of the Notes of all Series proving to have been incorrect in any material respect as of the time when the same shall have been made, which default or inaccuracy, as applicable, has an Adverse Effect on the Noteholders of all Series and continues unremedied for sixty (60) days after the date on which written notice of such failure or inaccuracy, shall have been given in writing (y) to the Issuer and the Transferor by the Indenture Trustee or any Series Enhancer, or (z) to the Issuer, the Transferor and the Indenture Trustee by Noteholders of any outstanding Series;
(e) the following conditions shall have occurred: (A) a Servicer Default shall have occurred and shall not have been remedied, waived or cured, and (B) a Successor Servicer shall not have been appointed and assumed the servicing of the Receivables pursuant to a servicing agreement reasonably acceptable to the Requisite Global Majority by the date which is sixty (60) days after the date on which such Servicer Default initially occurred; or
(f) the Issuer or the Transferor is required to register as an investment company under the Investment Company Act.
For the avoidance of doubt, the ten (10) Business Day grace period provided for in the Trust Event of Default described in paragraph (b) above shall run contemporaneously with any comparable grace period relating to the comparable covenant or obligation of the Issuer, the Transferor, or the Servicer, as applicable, to pay, transfer or deposit funds in the Transaction Documents.
The Issuer shall deliver to the Indenture Trustee, promptly, but in any event within five (5) days after the occurrence of any Event of Default, written notice in the form of an Officers Certificate of the Issuer of such Event of Default, its status and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.3 Acceleration of Maturity; Rescission and Annulment.
(a) If a Trust Event of Default described in paragraph (b), (c), (d), (e), or (f) of Section 5.2 should occur and be continuing, then the Indenture Trustee may, or upon written direction of the Holders of Notes representing more than 50% of the Outstanding Amount of the Notes of any Series, shall declare, by a notice in writing to the Issuer, all the Notes of such Series together with accrued or accreted and unpaid interest thereon through the date of acceleration to be immediately due and payable and an Event of Default to have occurred with respect to each Series. The Indenture Trustee shall provide written notice to the Issuer, Noteholders, Servicer and Transferor of the declaration of a Trust Event of Default promptly thereafter.
(b) If a Trust Event of Default described in paragraph (a) of Section 5.2 should occur and be continuing, then the unpaid principal of the Notes of each Series, together with the accrued or accreted and unpaid interest thereon through the date of acceleration, shall automatically become, and shall be considered to be declared, due and payable.
At any time after such declaration of acceleration of maturity has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter in this Article V provided, the Holders of Notes representing more than 50% of the Outstanding Amount of the Notes of such Series, by written notice to the Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences with respect to such Series.
No such rescission shall affect any subsequent default or impair any right consequent thereto.
SECTION 5.4 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
(a) If an Event of Default occurs and is continuing, the Indenture Trustee may, as more particularly provided in Section 5.5 proceed to protect and enforce its rights and the rights of the Noteholders of the affected Series (or all Series, as applicable), by initiating Proceedings to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or by law.
(b) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes of the affected Series, or any Person having or claiming an ownership interest in the Collateral, Proceedings under Title 11 of the United States Code or any other applicable Insolvency Law, now or hereafter in effect or in case a receiver, conservator, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator, custodian or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor or Person, or in case of any other comparable judicial Proceedings relative to the Issuer or other obligor upon the Notes of such Series, or to the creditors or property of the Issuer or such other obligor, the Indenture Trustee, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section 5.4, shall be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes of such Series and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence or willful misconduct) and of the Noteholders of such Series, allowed in any Proceedings relative to the Issuer or other obligor upon the Notes, or to the creditors or property of the Issuer or such other obligor;
(ii) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of Notes of such Series in any election of a trustee, a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency Proceedings or a Person performing similar functions in comparable Proceedings;
(iii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders of such Series and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Holders of Notes of such Series allowed in any judicial Proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, conservator, liquidator, custodian, assignee, sequestrator or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee, and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel (including disbursements), and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence or willful misconduct of such Indenture Trustee.
(c) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
(d) All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, indemnities, disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents and attorneys, shall be for the benefit of the Holders of the Notes of the affected Series as provided herein.
(e) In any Proceedings brought by the Indenture Trustee (except with respect to any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Holders of the Notes of the affected Series, and it shall not be necessary to make any such Noteholder a party to any such Proceedings.
SECTION 5.5 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing, for any Series, and the Notes of such Series have been accelerated under Section 5.3, the Indenture Trustee may (subject to Sections 5.7 and 5.9) do one or more of the following:
(i) institute Proceedings as trustee of an express trust for the collection of all amounts then payable on the Notes of the affected Series or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Issuer the portion of the Collateral allocated to such Series and from any other obligor upon such Notes moneys adjudged due;
(ii) sell all or a portion of the Receivables in accordance with this Indenture, in an amount not to exceed the Invested Amount for the accelerated Series, as
shall constitute a part of the Collateral (or rights of interest therein), at one or more public or private sales called and conducted in any manner permitted by law;
(iii) take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Holders of the Notes of the affected Series;
(iv) at its own election or at the written direction of the Holders of more than 50% of the Outstanding Amount of the Notes of any affected Series, institute foreclosure Proceedings from time to time with respect to the portion of the Collateral which secures such Notes by causing the Issuer to sell Receivables with an aggregate Receivable Balance equal to the Invested Amount with respect to the accelerated Series of Notes, but only if the Indenture Trustee determines that the proceeds of such sale will be sufficient to pay principal of and interest on such Notes in full;
(v) at the written direction of not less than 66-2/3% of the Outstanding Amount of each Class of the Notes of such Series, institute foreclosure Proceedings from time to time with respect to the portion of the Collateral which secures such Notes, regardless of the sufficiency of the proceeds thereof, by causing the Issuer to sell Receivables in an amount equal to the Invested Amount with respect to the accelerated Series of Notes in accordance with Section 5.16 hereof (each of the actions described in clauses (iv) and (v) a Foreclosure Remedy);
The remedies provided in this Section 5.5(a) are the exclusive remedies provided to the Noteholders for an Event of Default, and each of the Noteholders (by their acceptance of their respective interest in the Notes) and the Indenture Trustee hereby expressly waive any other remedy that may be available under the applicable UCC.
In determining such sufficiency or insufficiency with respect to clauses (iii) and (iv), the Indenture Trustee shall be entitled to obtain and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Collateral for such purpose, which opinion shall not be at the expense of the Indenture Trustee.
(b) If the Indenture Trustee collects any money or property for a Series pursuant to this Article V following the acceleration of the maturities of the Notes for such affected Series pursuant to Section 5.3 (so long as such declaration shall not have been rescinded or annulled), it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for amounts due pursuant to Section 6.7;
SECOND: to Holders of Notes of such Series for amounts due and unpaid on such Notes for interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind except for preferences or priorities specified in and in accordance with the related Indenture Supplement, according to the amounts due and payable on such Notes for interest according to the terms of the related Indenture Supplement;
THIRD: to Holders of Notes of such Series for amounts due and unpaid on such Notes for principal, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind except for preferences or priorities specified in and in accordance with the related Indenture Supplement, according to the amounts due and payable on such Notes for principal according to the terms of the related Indenture Supplement;
FOURTH: to Holders of Notes of such Series for amounts, if any, that remain owing to such Holders of Notes of such Series after the applications of amounts described in SECOND and FIRST above, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind except for preferences or priorities specified in and in accordance with the related Indenture Supplement, according to the amounts remaining due and payable on such Notes according to the terms of the related Indenture Supplement;
FIFTH: to any Series Enhancer for such Series for amounts due and unpaid to such Series Enhancer under the Series Enhancement, in respect of which or for the benefit of which such money has been collected, according to the terms of the Series Enhancement; and
SIXTH: to the Issuer for distribution pursuant to the Trust Agreement.
(c) The Indenture Trustee may set a record date and payment date for any payment to Noteholders of the affected Series pursuant to this Section 5.5. At least fifteen (15) days before such record date, the Indenture Trustee shall mail or send by facsimile to each such Noteholder a notice that states the record date, the payment date and the amount to be paid.
(d) In addition to the application of money or property referred to in Section 5.5(b) for an accelerated Series, amounts then held in the Collection Account or any Series Accounts for such Series and any amounts available under the Series Enhancement for such Series, following payment of any amounts due to the Indenture Trustee pursuant to Section 6.7, shall be used to make payments to the Holders of the Notes of such Series and the Series Enhancer (if any) for such Series in accordance with the terms of this Indenture and the related Indenture Supplement and the Series Enhancement for such Series. Following the sale of the Collateral (or portion thereof) for a Series and the application of the proceeds of such sale to such Series and the application of the amounts then held in the Collection Account and any Series Accounts for such Series as are allocated to such Series, such Series shall no longer be entitled to any allocation of Collections or other property constituting the Collateral under this Indenture, and the Notes of such Series shall no longer be Outstanding.
SECTION 5.6 Indenture Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any Proceeding relating thereto, and any such Proceeding instituted by the Indenture Trustee shall be brought in its own name as Indenture Trustee. Any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel, be for the ratable benefit of the Noteholders and any other parties entitled thereto pursuant to the applicable Indenture Supplement in respect of which such judgment has been obtained.
SECTION 5.7 Limitation on Suits. No Noteholder shall have any right to institute any Proceedings, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) subject to the provisions of Section 5.5(a)(iv) and 5.12 hereof, the Holders of not less than 25% of the Outstanding Amount of each affected Series of Notes have made written request to the Indenture Trustee to institute such proceeding in its own name as indenture trustee;
(b) such Noteholder or Noteholders has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(c) such Noteholder or Noteholders has offered to the Indenture Trustee indemnity reasonably deemed satisfactory to the Indenture Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity has failed to institute any such Proceeding; and
(e) no direction inconsistent with such written request has been given to the Indenture Trustee during such 60-day period by more than 50% of the Outstanding Amount of the Notes of such Series (or all Series, as applicable);
it being understood and intended that no one or more Noteholders of the affected Series shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholders or to obtain or to seek to obtain priority or preference over any other Noteholders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Noteholders except as may otherwise be specified in any applicable Indenture Supplement.
In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Noteholders of such affected Series or of all Series, as the case may be, each representing less than a majority of the Outstanding Amount of such Notes, the Indenture Trustee shall follow the direction of the group of Noteholders holding of the greatest percentage of the Outstanding Amount of such Notes.
SECTION 5.8 Unconditional Rights of Noteholders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, each Noteholder shall have the right which is absolute and unconditional to receive payment of the principal (if any) of and interest in respect of such Note as such principal and interest becomes due and payable and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Noteholder.
SECTION 5.9 Restoration of Rights and Remedies. If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned, or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the Indenture Trustee and the Noteholder shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. No right, remedy, power or privilege herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right, remedy, power or privilege, and every right, remedy, power or privilege shall, to the extent permitted by law, be cumulative and in addition to every other right, remedy, power or privilege given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right or remedy shall not preclude any other further assertion or the exercise of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No failure to exercise and no delay in exercising, on the part of the Indenture Trustee or of any Noteholder or other Person, any right or remedy occurring hereunder upon any Trust Event of Default shall impair any such right or remedy or constitute a waiver thereof of any such Trust Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.12 Rights of Noteholders to Direct Indenture Trustee. Subject to the provisions of Section 5.5(a)(iii) and Section 5.5(a)(v), more than 50% of the Outstanding Amount of any Outstanding Series, if an Event of Default has occurred and is continuing for such Series, shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes of such Series or exercising any trust or power conferred on the Indenture Trustee with respect to the Notes of such Series; provided, however, that subject to Section 6.1:
(a) the Indenture Trustee shall have the right to decline any such direction if the Indenture Trustee, after being advised by counsel, determines that the action so directed is in conflict with any rule of law or with this Indenture, and
(b) the Indenture Trustee shall have the right to decline any such direction if the Indenture Trustee in good faith shall, by a Responsible Officer of the Indenture Trustee, determine that the Proceedings so directed would be illegal or involve the Indenture Trustee in personal liability or be unjustly prejudicial to the Noteholders not parties to such direction.
SECTION 5.13 Waiver of Past Defaults. Prior to the declaration of the acceleration of the maturity of the Notes of a Series as provided in Section 5.3, the Holders of more than 50% of the Outstanding Amount of Notes of such Series may, on behalf of all such Noteholders, waive in writing any past default with respect to the Notes of such Series and its consequences (including an Event of Default), except a default:
(a) in the payment of the principal or interest in respect of any Note of such Series, or
(b) in respect of a covenant or provision hereof that under Section 10.2 hereof cannot be modified or amended without the consent of the Noteholder of each Outstanding Note of such Series affected.
Upon any such written waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. After a declaration of acceleration, only waivers pursuant to Section 5.3 are permitted.
SECTION 5.14 Undertaking for Costs. All parties to this Indenture agree, and each Noteholder by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.14 shall not apply to any suit instituted by the Indenture Trustee, to any suit instituted by any Noteholder, or group of Noteholders, (in compliance with Section 5.7 hereof), holding in the aggregate more than 10% of the Outstanding Amount of the Notes of the affected Series, or to any suit instituted by any Noteholder for the enforcement of the payment of the principal or interest in respect of any Note on or after the Payment Date on which any of such amounts was due pursuant to the terms of such Note or the applicable Indenture Supplement (or, in the case of redemption, on or after the applicable Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may adversely affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 5.16 Sale of Receivables.
(a) The method, manner, time, place and terms of any sale of Receivables (or interest therein) pursuant to Section 5.5(a) shall be as directed by the Holders of Notes representing more than 50% of the Outstanding Amount of the Notes of the relevant Series (or, in the case of Section 5.5(a)(v), 66-2/3%). The Indenture Trustee may from time to time postpone any sale by public announcement made at the time and place of such sale.
(b) The Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer in connection with any sale of Receivables pursuant to Section 5.5(a). No purchaser or transferee at any such sale shall be bound to ascertain the Indenture Trustees authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies.
(c) In its exercise of the Foreclosure Remedy pursuant to Section 5.5(a) the Indenture Trustee by itself or acting through its agents shall solicit competitive bids from Permitted Assignees for the sale of Receivables in an amount equal to the Invested Amount of the accelerated Series of Notes at the time of sale. The Transferor or any of its Affiliates shall be entitled to participate in, and to receive from the Indenture Trustee a copy of each other bid submitted in connection with, such bidding process. The Indenture Trustee shall sell such Receivables (or interests therein) on terms equivalent to the best purchase offer as determined by the Indenture Trustee upon the advice of its independent investment advisor. The proceeds of any such sale shall be applied in accordance with Section 5.5(b).
SECTION 5.17 Action on Notes. The Indenture Trustees right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking or obtaining of or application for any other relief under or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Collateral or upon any of the assets of the Issuer. Subject to Section 5.5, any money or property collected by the Indenture Trustee shall be applied as specified in the applicable Indenture Supplement.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of the Indenture Trustee.
(a) If an Event of Default (or any Amortization Event constituting an Event of Default) of which a Responsible Officer of the Indenture Trustee has actual knowledge or has received written notice, has occurred and is continuing, the Indenture Trustee shall, prior to the receipt of directions, if any, from more than 50% of the Outstanding Amount of the Notes or as otherwise provided herein in the case of certain directions, exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs.
(b) Except during the continuance of an Event of Default of which a Responsible Officer of the Indenture Trustee has actual knowledge or has received written notice:
(i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or
obligations or duties (including fiduciary duties) shall be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of willful misconduct or negligence on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; provided, however, that the Indenture Trustee, upon receipt of any certificates, opinions, reports, documents, Issuer Orders or other instruments furnished to the Indenture Trustee which are specifically required to be furnished pursuant to any provision of this Indenture or any Indenture Supplement, shall examine them to determine whether they substantially conform on their face to the requirements of this Indenture or any Indenture Supplement (but need not confirm or investigate the accuracy of any mathematical calculations or other facts contained therein).
(c) No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of Section 6.1(a);
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with this Indenture and/or the direction of more than 50% of Holders of the Outstanding Amount of the Notes of each outstanding Series of Notes (or, with respect to any such action that does not relate to all Series, the Holders of a majority of the aggregate outstanding principal amount of all Series of Notes Outstanding to which such action relates) relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or for exercising any trust or power conferred upon the Indenture Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to the Indenture Trustee is subject to the provisions of this Article VI.
(f) Except as expressly provided in this Indenture, the Indenture Trustee shall have no power to vary the Collateral, including, without limitation, by (i) accepting any substitute payment obligation for a Receivable initially transferred to the Issuer under the
Transfer and Servicing Agreement, (ii) adding any other investment, obligation or security to the Issuer or (iii) withdrawing from the Issuer any Receivable (except as otherwise provided in the Transfer and Servicing Agreement).
(g) The Indenture Trustee shall have no responsibility or liability for investment losses on Eligible Investments (other than Eligible Investments on which the institution acting as Indenture Trustee is an obligor).
(h) Every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to the Indenture Trustee shall be subject to the provisions of this Section 6.1, Section 6.3 and Section 6.7. In the performance of its duties and obligations under this Indenture, the Securities Intermediary, the Registrar and the Paying Agent shall not be liable except for its own willful misconduct, negligence and bad faith in the performance of its duties hereunder. Each of the rights, protections indemnities and immunities (but none of the obligations) afforded to the Indenture Trustee under this Indenture shall be applicable to the Securities Intermediary, the Registrar and the Paying Agent mutatis mutandis.
SECTION 6.2 Notice of Amortization Event or Trust Event of Default or Servicer Default.
(a) Upon the occurrence of any Amortization Event, Event of Default or Servicer Default of which a Responsible Officer of the Indenture Trustee has actual knowledge or has received written notice thereof, the Indenture Trustee shall transmit, to all Noteholders of the affected Series as their names and addresses appear on the Note Register and to the Rating Agencies, as applicable, notice of such Amortization Event, Event of Default or Servicer Default promptly after it receives such notice or obtains actual knowledge.
(b) Notwithstanding anything herein or in any Transaction Document to the contrary, the Indenture Trustee will not be deemed to have knowledge of any fact or event (including without limitation any default, Default, Event of Default, Amortization Event, Series Default, Series Amortization Event, Force Majeure Event, or Servicer Default, or breach of representation or warranty) unless written notice of such fact or event is received by a Responsible Officer of the Indenture Trustee and such notice references the Notes or this Indenture and evidences that the fact or event has occurred. The Trustee shall have no duty to inquire into, investigate or take any action to determine whether any fact or event (including without limitation, any default, event of default, amortization event, force majeure event, servicer default, or breach of representation or warranty) has in fact occurred and shall have no duty to make any determination as to the materiality or effect (including the Adverse Effect) of any fact, matter or event, or, absent written direction of the Noteholders to make any demand or claim for repurchase of Receivables. Any notice to the Indenture Trustee of a breach of representation or warranty shall be in writing and shall specifically identify, with support, the specific Receivables in breach along with the specific representation or warranty that was breached and a statement by the sender that if the breach is not cured, repurchase is required pursuant of the Transaction Documents.
(c) Knowledge or information acquired by U.S. Bank National Association in its capacity as Indenture Trustee, Paying Agent or Registrar, as applicable, shall not be imputed
to U.S. Bank National Association in any other capacity in which it may act under the Transaction Documents or to any affiliate of U.S. Bank National Association and vice versa.
SECTION 6.3 Rights of Indenture Trustee.
(a) Except as otherwise provided in Section 6.1:
(i) the Indenture Trustee may conclusively rely and shall fully be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. In connection with the delivery of any information to the Indenture Trustee by the Servicer or any other party to the Transaction Documents where the Indenture Trustee is required to use such information in connection with the preparation or distribution of payments or reports to Noteholders or other parties, the Indenture Trustee is entitled to conclusively rely on the accuracy of all such information and shall not be required to investigate or reconfirm its accuracy and shall not be liable in any manner whatsoever for any errors, inaccuracies or incorrect information resulting from the use of this information;
(ii) except during the continuance of a Trust Event of Default, whenever in the administration of this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate of the Issuer;
(iii) as a condition to the taking, suffering or omitting of any action by it hereunder, the Indenture Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in-good faith and in reliance thereon;
(iv) the Indenture Trustee is not obligated to (i) exercise the rights or powers under this Indenture or the other Transaction Documents or to pay or risk its own funds or incur any financial liability in the performance of its obligations under this Indenture or the other Transaction Documents if it has reasonable grounds to believe that payment of such funds or adequate indemnity satisfactory to it against that risk or liability is not reasonably assured or given to it or (ii) start, pursue or defend litigation, investigate any matter or honor the request or direction of the Noteholders under this Indenture, unless the Noteholders have offered to the Indenture Trustee reasonable security or indemnity satisfactory to it for the reasonable expenses that might be incurred by the Indenture Trustee in complying with the request or direction; provided, however, that notwithstanding anything to the contrary in this Indenture, the Indenture Trustee will not be required to take any action if the Indenture Trustee reasonably determines that such action (x) will not be in the best interests of the Noteholders or (y) will be contrary to applicable Law; provided further, that nothing contained herein shall relieve the
Indenture Trustee of the obligations, upon the occurrence of an Event of Default (which has not been cured or waived), to exercise such of the rights and powers vested in it by this Indenture and to use the same degree of care or skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs; and the permissive right of the Indenture Trustee to take any action under the Transaction Documents shall not be construed as a duty to take such action;
(v) the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, approval, bond, note or other paper or document believed by it to be genuine, unless requested in writing so to do by Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all Notes (or, with respect to any such matters that do not relate to all Series, more than 50% of the aggregate unpaid principal amount of the Notes of all Series to which such matters relate);
(vi) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of or for the supervision of any agent, attorney, custodians or nominees appointed with due care by it hereunder;
(vii) the Indenture Trustee shall not be liable for any actions taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights conferred upon the Indenture Trustee by this Indenture; and
(viii) the rights, privileges, protections, immunities and benefits given to the Indenture Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Indenture Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(b) In no event shall the Indenture Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(c) In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
(d) The Indenture Trustee may consult with counsel, accountants, appraisers or other experts or advisors, and the advice or opinion of counsel, accountants, appraisers or
other experts or advisors on any matters relating to this Indenture, any Indenture Supplement and the Notes will be full and complete authorization and protection from liability for any action taken or not taken by it under this Indenture in good faith and according to the advice or opinion of that counsel, accountant, appraiser or expert or advisor.
(e) The Indenture Trustee shall not be required to determine the materiality or adverse effect of breaches of representations or warranties or other events for purposes of notice or enforcement hereunder or under any other Transaction Document.
(f) The Indenture Trustee may request that the Issuer, the Administrator and any other Person deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture or any Indenture Supplement.
(g) The Indenture Trustee shall have no responsibility to prepare or make any filing or report under, or make any determination with respect to, any securities law or tax law, or to monitor, enforce, make any determination or take any action with respect to any risk retention requirements or other regulatory requirements and shall have no liability for the failure of the Issuer, the Notes or the Noteholders or any other Person to satisfy any such requirements.
(h) Except as expressly provided in this Indenture or any Indenture Supplement, the Indenture Trustee shall have no obligation to administer, service or collect the Receivables or to maintain, monitor or otherwise supervise the administration, servicing or collection of the Receivables.
(i) The Indenture Trustee shall be under no duty or obligation in connection with the acquisition or Grant by the Issuer to the Indenture Trustee of any item constituting the Collateral, or to evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Issuer in connection with its Grant or otherwise, in each case, in order to determine compliance with applicable requirements of and restrictions on transfer in respect of such Collateral.
(j) The Indenture Trustee will not have any obligation or responsibility to monitor or enforce the Sponsors compliance with any risk retention requirements under Regulation RR. The Indenture Trustee shall not be charged with knowledge of such rules, nor shall it be liable to any Noteholder or other party for violation of such rules now or hereafter in effect, except as otherwise may be explicitly required by law, rule or regulation.
(k) The Indenture Trustee shall have no obligation to determine whether this Indenture complies with the TIA or whether this Indenture is required to be qualified under the TIA and shall have no liability in connection therewith. The Indenture Trustee shall be entitled to rely on the provisions of this Indenture and shall have no liability to any Person for its good faith reliance thereon regardless of whether its compliance with the terms hereof would cause this Indenture to be required to be qualified under the TIA.
SECTION 6.4 Not Responsible for Recitals or Issuance of Notes. The recitals contained herein and in the Notes, except the certificate of authentication of the Indenture Trustee, shall be taken as the statements of the Issuer, and the Indenture Trustee assumes no responsibility for
their correctness. The Indenture Trustee makes no representation as to the validity or sufficiency of the Agreement, the Notes, the Collateral or any related document. The Indenture Trustee shall not be accountable for the use or application by the Issuer of the proceeds from the Notes or for any statement of the Issuer, Depositor or Servicer in any offering document or note purchase agreement used for the offering or sale of the Notes.
SECTION 6.5 May Hold Notes. The Indenture Trustee, any Paying Agent and Registrar or any other agent of the Issuer, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer with the same rights it would have if it were not Indenture Trustee, Paying Agent and Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the Indenture Trustee or the Paying Agent in trust hereunder need not be segregated from other funds held by the Indenture Trustee or the Paying Agent in trust hereunder except to the extent required herein or required by law. The Indenture Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed upon in writing by the Indenture Trustee and the Issuer.
SECTION 6.7 Compensation, Reimbursement and Indemnification.
(a) Pursuant to any Indenture Supplement, the Issuer shall direct the payment to the Indenture Trustee from time to time of such compensation for its services as shall be agreed upon in writing. The Indenture Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and the Servicer shall reimburse the Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by it, including in connection with notices or other communications to the Noteholders, costs of collection and enforcement, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustees agents, counsel, accountants and experts. The Issuer and the Servicer shall jointly and severally indemnify U.S. Bank National Association (in each of its capacities under this Indenture and the Transaction Documents) and its directors, officers, employees and agents (each, an Indemnified Party) against any and all loss, liability, claim, action, suit, damage, tax, penalty, cost, disbursement or expense (including reasonable attorneys fees and expenses) incurred by it in connection with the administration of this trust and the performance of its duties hereunder and under the other Transaction Documents and including any such amount incurred by an Indemnified Party in connection with (x) defending itself against any claim, legal action or proceeding and (y) the enforcement by it of any obligation of any party related to the Transaction Documents, including any action, claim, or proceeding commenced by it to enforce the indemnification obligations of the Issuer and the Servicer. The Indenture Trustee shall notify the Issuer and the Servicer promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Servicer shall not relieve the Issuer of its obligations hereunder. Pursuant to the Transfer and Servicing Agreement, the Servicer shall defend any claim against the Indenture Trustee, the Indenture Trustee may have separate counsel and, if it does, the Servicer shall pay the fees and expenses of such counsel. Neither the Issuer nor the Servicer need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee determined by a court of competent jurisdiction to have been caused by the Indenture Trustees own negligence or willful misconduct.
(b) The Issuers and Servicers payment obligations to the Indenture Trustee pursuant to this Section 6.7 shall survive the satisfaction and discharge of this Indenture or the resignation or removal of the Indenture Trustee. When the Indenture Trustee incurs expenses after the occurrence of an Event of Default specified in Section 5.2(a) or (b) with respect to the Issuer, the expenses are intended to constitute expenses of administration under Title 11 of the United States Code or any other applicable Insolvency Law.
(c) To the extent that any amounts due and owing to the Indenture Trustee are not paid pursuant to the Indenture Supplement within thirty (30) days of demand therefor by the Indenture Trustee, such obligation shall be payable by and are hereby agreed to be the obligation of USCC.
SECTION 6.8 Replacement of Indenture Trustee. No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee shall become effective until the acceptance of appointment by the successor Indenture Trustee pursuant to this Section 6.8 and the payment of all amounts owed to the retiring Indenture Trustee (unless otherwise agreed by the retiring Indenture Trustee). The Indenture Trustee may resign at any time by giving thirty (30) days written notice to the Issuer and the Transferor. More than 50% of the Outstanding Amount of the Notes may remove the Indenture Trustee by giving thirty (30) days prior written notice to the Indenture Trustee and may appoint a successor Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver of the Indenture Trustee or of its property shall be appointed, or any public officer takes charge of the Indenture Trustee or its property or its affairs for the purpose of rehabilitation, conservation or liquidation; or
(d) the Indenture Trustee otherwise becomes incapable of acting.
(e) If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Issuer at the direction of the Transferor shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee, the Issuer and to the Servicer. Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all the rights, powers and duties of the Indenture Trustee under this Indenture. The successor Indenture Trustee shall mail a notice of its succession to Noteholders. The retiring Indenture Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor Indenture Trustee. The Issuer and the predecessor Indenture Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Indenture Trustee all such rights, powers, duties and obligations. Notwithstanding any other provisions herein, the appointment of a successor indenture trustee shall not be effective unless the Rating Agency Condition, if
applicable, shall have been satisfied. Upon acceptance of appointment by a successor indenture trustee as provided in this Section 6.8, such successor indenture trustee shall provide notice of such succession hereunder to all Noteholders and the Servicer shall provide such notice to each Rating Agency, if applicable, and each Series Enhancer, if any.
If a successor Indenture Trustee does not take office within thirty (30) days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuer or the Holders of more than 50% of the Outstanding Amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this Section 6.8, the Issuer and the Servicers reimbursement and indemnity obligations under Section 6.7 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking association without any further act shall be the successor Indenture Trustee; provided, that such corporation or banking association shall be otherwise qualified and eligible under Section 6.11. Upon such consolidation, merger, conversion or transfer, such successor shall promptly give each Rating Agency, if applicable, written notice thereof.
In case at the time such successor or successors by merger, conversion, consolidation or transfer to the Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor indenture trustee and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes in the name of the successor to the Indenture Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Collateral may at the time be located, the Indenture Trustee shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Collateral, or any part hereof, and, subject to the other provisions of this Section 6.10, such
powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.11, and no notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Indenture Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Collateral or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VI. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall at all times satisfy the requirements of TIA § 310(a) and Section 26(a)(1) of the Investment Company Act. The Indenture Trustee shall have a combined capital and surplus, and an aggregate capital,
surplus and undivided profits, of at least $50,000,000 as set forth in its most recent published annual report of condition and it shall have a long term unsecured debt rating of at least A1 by Moodys Investors Service, A by Standard & Poors, or A+ by Fitch Ratings, or such lower rating provided that such rating does not result in a downgrade of the ratings of the Notes, if any, as evidenced by written confirmation from each Hired Agency that such banks acting as Indenture Trustee would not in and of itself result in a qualification, downgrade or withdrawal of any of the then current ratings assigned thereby to the Notes of any Series). The Indenture Trustee shall comply with TIA § 310(b); provided, however, that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or indentures under which other securities of the Issuer are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met. Without limiting the foregoing, the Indenture Trustee shall comply at all times with subsection (a)(4)(i) of Rule 3a-7 of the Investment Company Act.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The Indenture Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
SECTION 6.13 Representations and Covenants of the Indenture Trustee. The Indenture Trustee represents, warrants and covenants as of the date hereof that:
(a) the Indenture Trustee is a national banking association duly organized and validly existing under the federal laws of the United States of America;
(b) the Indenture Trustee possesses and shall continue to possess all requisite corporate power and authority to conduct its business and to execute, deliver and perform its obligations under this Indenture;
(c) the execution and delivery of this Indenture by the Indenture Trustee and its performance and compliance with the terms of this Indenture will not violate the Indenture Trustees articles of association or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or to the best of its knowledge of its Responsible Officers result in the breach of, any material contract, agreement or other instrument to which the Indenture Trustee is a party or which may be applicable to the Indenture Trustee or any of its assets;
(d) the Indenture Trustee has the full power and authority to enter into and consummate the transactions contemplated by this Indenture, has duly authorized the execution, delivery and performance of this Indenture, and has duly executed and delivered this Indenture;
(e) each of this Indenture and each other Transaction Document to which it is a party have been duly executed and delivered by the Indenture Trustee and constitute its legal, valid and binding obligation in accordance with its terms except as may be limited by (i) insolvency, bankruptcy, reorganization, moratorium or other laws now or hereafter in effect relating to the enforcement of creditors rights generally, (ii) general equitable principles (regardless of whether such enforceability is considered in a proceeding at law or in equity) and
(iii) with respect to rights of indemnity hereunder, limitations of public policy under applicable securities laws or other laws;
(f) the Indenture Trustee is not in violation of, and the execution and delivery of this Indenture by the Indenture Trustee and its performance and compliance with the terms of this Indenture will not constitute a violation with respect to, any order or decree of any court or any order, law or regulation of any federal, state, municipal or governmental agency of or in the United States of America having jurisdiction over the trust powers of the Indenture Trustee, which violation would have consequences that would materially and adversely affect the condition (financial or other) or operations of the Indenture Trustee or might have consequences that would materially affect the performance of its duties hereunder or thereunder;
(g) to the best knowledge of its Responsible Officers, no consent, approval, authorization or order of, or registration of filing with, or notice to any federal governmental authority or agency having jurisdiction over the trust powers of the Indenture Trustee, is required for the execution, delivery and performance by the Indenture Trustee of this Indenture or if required, such approval has been obtained prior to the Initial Closing Date; and
(h) the Indenture Trustee meets the eligibility requirements set forth in Section 6.11.
SECTION 6.14 Tax Returns. In the event the Issuer shall be required to file tax returns, the Administrator shall prepare or shall cause to be prepared such tax returns and shall provide such tax returns to the tax matters partner (on behalf of the Issuer) for signature at least five (5) days before such tax returns are due to be filed. The Servicer, in accordance with the terms of each Indenture Supplement, shall also prepare or shall cause to be prepared all tax information required by law to be distributed to Noteholders and shall deliver such information to the Indenture Trustee (on behalf of the Issuer) at least five (5) days prior to the date it is required by law to be distributed to Noteholders. The Issuer will, upon written request, furnish the Administrator with all such information as may be reasonably requested and required in connection with the preparation of all tax returns of the Issuer. The Equity Certificateholder (on behalf of the Issuer) shall, upon request, execute such returns.
SECTION 6.15 Custody of the Collateral. The Indenture Trustee shall hold such of the Collateral (other than the Receivables) as constitutes an instrument, tangible chattel paper, a negotiable document, or money in the State of New York, separate and apart from all other property held by the Indenture Trustee. Collateral that constitutes tangible chattel paper shall be held at the Custodial Locations, and any change in any such location will be subject to the requirements and provisions of Article VIII of the Transfer and Servicing Agreement. Collateral that constitutes electronic chattel paper shall be held in a manner such that the Custodian or the Servicer has control of such electronic chattel paper within the meaning of Section 9-105 of the applicable UCC and the Servicer or the Custodian is maintaining control of such electronic chattel paper, subject to Article VIII of the Transfer and Servicing Agreement. Such of the Collateral as constitutes a deposit account shall be maintained in the name of the Indenture Trustee by a bank the jurisdiction of which for purposes of the UCC is the State of New York. The Indenture Trustee shall hold such of the Collateral as constitutes investment property through the Securities Intermediary, which Securities Intermediary shall agree with the Indenture
Trustee that (a) such investment property shall at all times be credited to a securities account of the Indenture Trustee, (b) such Securities Intermediary shall treat the Indenture Trustee as entitled to exercise the rights that comprise each financial asset credited to such securities account, (c) all property credited to such securities account shall be treated as financial assets, (d) such Securities Intermediary shall comply with entitlement orders originated by the Indenture Trustee without the further consent of any other person or entity, (e) such Securities Intermediary shall not agree with any person or entity other than the Indenture Trustee to comply with entitlement orders originated by any person or entity other than the Indenture Trustee, (f) such securities accounts and the property credited thereto shall not be subject to any lien, security interest, encumbrance or right of set-off in favor of such Securities Intermediary or anyone claiming through it (other than the Indenture Trustee), (g) all agreements governing such securities account shall be governed by the laws of the State of New York and the law of the State of New York shall govern all issues specified in Article 2(1) of The Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (Concluded 5 July 2006) which became effective in the United States of America on April 1, 2017, (h) such Securities Intermediary has at the time of any agreement governing such securities account a place of business in the United States at which any of the activities of the Securities Intermediary are carried on and which alone or together with other offices of the Securities Intermediary or with other persons acting for the Securities Intermediary in the United States or another nation (1) effects or monitors entries to securities accounts, (2) administers payments or corporate actions relating to securities held with the Securities Intermediary or such other persons, or (3) is otherwise engaged in a business or other regular activity of maintaining securities accounts, and (i) such Securities Intermediarys jurisdiction for purposes of the UCC shall be the State of New York. Terms used in this Section 6.15 that are defined in the New York UCC and not otherwise defined herein shall have the meaning set forth in the New York UCC. Except as permitted by this Section 6.15, the Indenture Trustee shall not hold any part of the Collateral through an agent or a nominee. The parties hereto agree that the Indenture Trustee shall serve as the Securities Intermediary, and upon any resignation, removal or replacement of the Indenture Trustee, the successor Indenture Trustee shall serve as the Securities Intermediary. For so long as the Indenture Trustee shall act as Securities Intermediary it shall be entitled to all of the same rights, protections, indemnities and immunities as the Indenture Trustee hereunder. It is understood and agreed that neither the Indenture Trustee nor the Securities Intermediary shall have any duty or obligation to determine compliance with this Section 6.15.
SECTION 6.16 Communications Regarding Demands to Repurchase Receivables. The Indenture Trustee agrees to cooperate in good faith with any reasonable request by the Seller or the Transferor for information which is required in order to enable the Seller or the Transferor to comply with Requirements of Law. For the exclusion of doubt, such cooperation shall include, without limitation, the provision of prompt notice to the Seller and the Transferor of all demands communicated to a Responsible Officer of the Indenture Trustee for the repurchase or replacement of any Receivable for breach of the representations and warranties concerning such Receivable. The Indenture Trustee shall, upon written request of either the Seller or the Transferor, provide notification to the Seller and the Transferor with respect to any actions taken by the Indenture Trustee or determinations made by the Indenture Trustee, in each case, with respect to any such demand communicated to the Indenture Trustee in respect of any Receivables, such notifications to be provided by the Indenture Trustee as soon as practicable and in any event within five Business Days of such request or such other time frame as may be
mutually agreed to by the Indenture Trustee and the Seller or the Transferor, as applicable. The Indenture Trustee and the Issuer acknowledge and agree that the purpose of this Section 6.16 is to facilitate compliance by the Seller and the Transferor with Requirements of Law. The Seller and the Transferor understand and agree that the Indenture Trustee will provide information related to demands communicated to the Indenture Trustee in respect of any Receivables only to the extent that a Responsible Officer of the Indenture Trustee has received such demands, and has possession of such information. The Indenture Trustee acknowledges that interpretations of Requirements of Law may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with reasonable requests made by the Seller and the Transferor in good faith for delivery of information under these provisions on the basis of evolving interpretations of Requirements of Law. The Indenture Trustee shall cooperate in good faith with the Seller and the Transferor to deliver any and all records in its possession and any other information necessary in the good faith determination of the Seller and the Transferor to permit them to comply with the provisions of Requirements of Law. In no event shall the Indenture Trustee have any responsibility or liability in connection with any filing required to be made by a securitizer under the Exchange Act or Regulation AB. The Seller and the Transferor acknowledge and agree that the Indenture Trustees reporting is limited to information that has been received or acquired by a Responsible Officer of the Indenture Trustee solely in its capacity as Indenture Trustee for the Issuer and not in any other capacity. The Seller and the Transferor further acknowledge and agree that, other than any express duties or responsibilities as Indenture Trustee under this Indenture or the related operative documents, the Indenture Trustee has no duty or obligation to undertake any investigation or inquiry related to demands for the repurchase or replacement of any Receivables or otherwise to assume any additional duties or responsibilities in respect of any transactions contemplated hereunder or otherwise in connection with the Issuer, and no such additional obligations or duties are implied in this Section 6.16. In addition, the Seller and the Transferor acknowledge that the Indenture Trustee is entitled to the full benefit of any and all protections, limitations on duties or liability and rights of indemnity provided by the terms of this Indenture and the related operative documents in connection with any action taken hereunder.
ARTICLE VII
NOTEHOLDERS LIST AND REPORTS BY INDENTURE TRUSTEE AND ISSUER
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders. The Issuer will furnish or cause to be furnished to the Indenture Trustee (a) upon each transfer of a Note, a list, in such form as the Indenture Trustee may reasonably require, of the names, addresses and taxpayer identification numbers of the Noteholders as they appear on the Note Register as of the most recent Record Date, and (b) at such other times, as the Indenture Trustee may request in writing, within ten (10) days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than ten (10) days prior to the time such list is furnished; provided, however, that for so long as the Indenture Trustee is the Registrar, no such list should be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Noteholders contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.1 and the names, addresses and taxpayer identification numbers of the Noteholders received by the Indenture Trustee in its capacity as Registrar. The Indenture Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate with other Noteholders with respect to their rights under this Indenture or under the Notes.
(c) The Issuer and the Indenture Trustee shall have the protection of TIA § 312(c).
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days after the Issuer is required to file the same with the Commission or any applicable state agencies, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the Commission pursuant to Section 12 or 15(d) of the Exchange Act or any applicable state agencies pursuant to comparable regulation;
(ii) file with the Indenture Trustee and the Commission or any applicable state agencies in accordance with rules and regulations prescribed from time to time by the Commission or any applicable state agencies such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders described in TIA § 313(c)) such summaries of any information, documents and reports required to be filed by the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be required by rules and regulations prescribed from time to time by the Commission or any applicable state agencies.
SECTION 7.4 Reports by Indenture Trustee.
(a) If required by TIA § 313(a), within 60 days after each May 1, beginning with May 1, 2018, the Indenture Trustee shall mail to each Noteholder as required by TIA § 313(c) a brief report dated as of such date that complies with TIA § 313(a). If the Indenture is or is required to be qualified under the TIA, the Indenture Trustee also shall comply with TIA § 313(b). A copy of any report delivered pursuant to this Section 7.4(a) shall, at the time of its
mailing to Noteholders, be filed by the Indenture Trustee with the Commission, if required by applicable rules.
(b) On each Payment Date, the Indenture Trustee shall make available to each Noteholder the statement for the Collection Period or Periods applicable to such Payment Date as required pursuant to Section 3.04 of the Transfer and Servicing Agreement and the applicable provisions of any Indenture Supplement, if applicable.
ARTICLE VIII
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 8.1 Collection of Money. Except as otherwise expressly provided herein and in the related Indenture Supplement, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall hold all such money and property received by it in an account with the corporate trust department in trust for the benefit of the Noteholders and shall apply it as provided in this Indenture or in the related Indenture Supplement, as applicable. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under the Transfer and Servicing Agreement or any other Transaction Document, the Indenture Trustee may, and upon the request of the Holders of more than 50% of the Outstanding Amount of the Notes shall, take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings. Any such action shall be without prejudice to any right to claim an Amortization Event or Event of Default under this Indenture and to proceed thereafter as provided in Article V hereof.
SECTION 8.2 Rights of Noteholders. The Collateral shall secure the obligations of the Issuer to pay to the Holders of the Notes of each Series principal and interest and other amounts payable pursuant to this Indenture and the related Indenture Supplement. Except as specifically set forth in the Indenture Supplement with respect thereto, the Notes of any Series or Class shall not have the right to payment from any Series Account or Series Enhancement allocated for the benefit of any other Series or Class.
SECTION 8.3 Establishment of Collection Account.
(a) The Servicer shall cause to be established and maintained with the Paying Agent, in the name of the Paying Agent on behalf of the Indenture Trustee for the benefit of the Noteholders, the Equity Certificateholder and any Series Enhancer, a segregated non-interest bearing account that is a Qualified Account bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Indenture Trustee on behalf of the Noteholders, the Equity Certificateholder and any Series Enhancer (the Collection Account). Where the Indenture or any Indenture Supplement employs the term Collection Account such reference shall implicitly refer to the Collection Account, unless explicitly otherwise provided. The Indenture Trustee shall possess all right, title and interest in all monies, instruments, investment property, documents, certificates of deposit and other property credited from time to
time to the Collection Account and in all proceeds, earnings, income, revenue, dividends and distributions thereof for the benefit of the Noteholders, the Equity Certificateholder and any Series Enhancer.
(b) The Collection Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders, the Equity Certificateholder and any Series Enhancer. Except as expressly provided in this Indenture and the Transfer and Servicing Agreement, the Servicer agrees that it shall have no right of setoff or bankers lien against, and no right to otherwise deduct from, any funds and other property held in the Collection Account for any amount owed to it by the Indenture Trustee, the Transferor, the Issuer, any Noteholder or any Series Enhancer. If, at any time, the Collection Account ceases to be a Qualified Account, the Indenture Trustee (or the Servicer on its behalf) shall within ten (10) Business Days establish a new Collection Account meeting the conditions specified above, transfer any monies, documents, instruments, investment property, certificates of deposit and other property to such new Collection Account and from the date such new Collection Account is established, it shall be the Collection Account. Pursuant to the authority granted to the Servicer in Section 3.01(b) of the Transfer and Servicing Agreement, the Servicer shall have the power revocable by the Issuer, to instruct the Paying Agent to make withdrawals and payments from the Collection Account for the purposes of carrying out the Servicers or the Indenture Trustees duties hereunder and under the Transfer and Servicing Agreement, as applicable. The Servicer shall reduce deposits into the Collection Account payable by the Transferor on any Deposit Date to the extent the Transferor is entitled to receive funds from the Collection Account on such Deposit Date, but only to the extent such reduction would not reduce the Transferor Amount to an amount less than the Minimum Transferor Amount.
(c) Funds on deposit in the Collection Account (other than investment earnings and amounts deposited pursuant to Section 7.01 of the Transfer and Servicing Agreement or Section 11.2(b) of this Indenture) shall at the written direction of the Servicer be invested by the Paying Agent in Eligible Investments selected by the Servicer. All such Eligible Investments shall be held by the Paying Agent for the benefit of the Noteholders pursuant to Section 6.15. Investments of funds representing Collections collected during any Collection Period shall be invested in Eligible Investments that will mature so that such funds will be available no later than the close of business on the Business Day immediately preceding each monthly Transfer Date following such Collection Period in amounts sufficient to the extent of such funds to make the required distributions on the following Payment Date. No such Eligible Investment shall be disposed of prior to its maturity; provided, however, that the Indenture Trustee may sell, liquidate or dispose of any such Eligible Investment before its maturity, at the written direction of the Servicer, if such sale, liquidation or disposal would not result in a loss of all or part of the principal portion of such Eligible Investment or if, prior to the maturity of such Eligible Investment, a default occurs in the payment of principal, interest or any other amount with respect to such Eligible Investment. Funds deposited in the Collection Account on a Transfer Date with respect to the immediately succeeding Payment Date shall not be invested overnight. On each Payment Date, any investment earnings (net of losses and investment expenses) on funds on deposit in the Collection Account shall be paid to the Transferor, except as otherwise specified in any Indenture Supplement. The Indenture Trustee shall bear no responsibility or liability for any losses resulting from investment or reinvestment of any funds in
accordance with this Section 8.3 or for the selection of Eligible Investments in accordance with the provisions of this Indenture and any Indenture Supplement.
(d) The Indenture Trustee shall:
(i) hold each Eligible Investment that constitutes investment property through a Securities Intermediary in accordance with Section 6.15 hereof; and
(ii) maintain possession of each other Eligible Investment not described in clause (i) above.
SECTION 8.4 Collections and Allocations.
(a) The Servicer will instruct the Indenture Trustee to apply all funds on deposit in the Collection Account as described in this Article VIII and in each Indenture Supplement. The Servicer shall deposit Collections received into the Collection Account in accordance with the terms of the Transfer and Servicing Agreement and each Indenture Supplement.
(b) Collections of Receivable Payments, Miscellaneous Payments, Loss Amounts and Recoveries will be allocated to each Series of Notes upon direction of the Servicer in accordance with this Article VIII, except as otherwise specified in the related Indenture Supplement for such Series, and amounts so allocated to any Series will not, except as specified in the related Indenture Supplement, be available to the Noteholders of any other Series.
(c) For each Series of Notes, the Servicer shall, unless otherwise specified in the related Indenture Supplement, on each Date of Processing, make allocations to the Holders of the Notes for such Series in accordance with the allocations specified in the following clauses (i)-(iii), and the Paying Agent shall withdraw the amounts allocated to each Series from the Collection Account and deposit such amounts into the applicable Series Accounts on each Determination Date, in accordance with the written direction of the Servicer:
(i) Allocations of Receivable Payments and Miscellaneous Payments. During the Revolving Period for each Series, the Servicer shall allocate to each such Series an amount equal to the product, as determined by the Servicer, of (A) the Floating Allocation Percentage for such Series and (B) the aggregate amount of Collections of Receivable Payments and Miscellaneous Payments received during the related Collection Period. During the Amortization Period for each Series, the Servicer shall allocate to each such Series an amount equal to the product of (A) the Fixed Allocation Percentage for such Series and (B) the aggregate amount of Collections of Receivable Payments and Miscellaneous Payments received during the related Collection Period.
(ii) Allocation of Loss Amounts. The Servicer shall allocate to each Series an amount equal to the product, as determined by the Servicer, of (A) the Floating Allocation Percentage for such Series and (B) the aggregate amount of Loss Amounts received during the related Collection Period.
(iii) Allocation of Recoveries. The Servicer shall allocate to each Series an amount equal to the product, as determined by the Servicer, of (A) the Floating Allocation Percentage for such Series and (B) the aggregate amount of Recoveries received during the related Collection Period.
(d) To the extent that a Series is designated as a Sharing Series in a Group, Shared Collections with respect to all Sharing Series in such Group for any Payment Date will be allocated to such Series, and deposited into the relevant Series Accounts, in an amount equal to the product, as determined by the Servicer, of (x) the aggregate amount of Shared Collections with respect to all the Sharing Series in such Group for such Payment Date and (y) a fraction, the numerator of which is the Collections Shortfall for such Series for such Payment Date and the denominator of which is the aggregate amount of Collections Shortfalls for all the Sharing Series in such Group for such Payment Date.
(e) Amounts not allocated to any Series of Notes pursuant to Section 8.4(c) will be allocated to the Transferor, as holder of the Equity Certificate, as follows: Unless otherwise stated in any Indenture Supplement, on each Date of Processing, the Servicer shall allocate to the Transferor, as holder of the Equity Certificate, an amount equal to the product of (A) the Transferor Percentage and (B) the aggregate amount of (1) Receivable Payments, plus (2) Miscellaneous Payments, plus (3) Recoveries, minus (4) Loss Amounts, as applicable, on that Date of Processing; provided, that, if the Transferor Amount (determined after giving effect to any transfer of Receivables to the Trust on such date), is less than or equal to the Minimum Transferor Amount, the Servicer shall not allocate to Transferor any such Receivable Payments, Miscellaneous Payments or Recoveries that otherwise would be allocated to Transferor, but shall instead deposit such funds in the Excess Funding Account to the extent necessary so that the Transferor Amount is not less than the Minimum Transferor Amount. Unless otherwise stated in any Indenture Supplement, neither the Servicer nor the Transferor need deposit any amounts allocated to Transferor pursuant to the foregoing into the Collection Account and shall pay, or be deemed to pay, such amounts as collected to Transferor.
On each Determination Date, after the amounts of all allocations have been determined (i) with respect to all outstanding Series and (ii) as provided for in any applicable Indenture Supplement, the Servicer may, with the consent of each Transferor, allocate any amounts which would otherwise be payable to the Transferor at such Transferors direction to one or more of the outstanding Series subject to the following conditions:
(A) (i) on or before the Determination Date immediately preceding such allocation, the Servicer shall have given the Indenture Trustee and each Rating Agency that has rated any Series or Class of Notes within the applicable Group, if applicable, written notice of such allocation; and (ii) for any Series or Class of Notes within the applicable Group that has been rated, if applicable, the applicable Rating Agency Condition, if any, shall have been satisfied with respect to such allocation; and
(B) the Servicer shall have delivered to the Indenture Trustee an Officers Certificate, dated the date of such allocation, to the effect that the Servicer reasonably believes that such allocation will not have an Adverse Effect.
SECTION 8.5 Directions Regarding Additional Withdrawals from the Collection Account. Prior to a Servicer Default, if the Servicer determines that any amounts have been misdirected to the Collection Account or deposited in error in the Collection Account, the Servicer is permitted and authorized to withdraw such amounts from the Collection Account to rectify any such misdirection or error.
SECTION 8.6 Release of Collateral; Eligible Loan Documents.
(a) The Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustees interest in the same, in a manner and under circumstances which are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustees authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies.
(b) The Indenture Trustee upon receipt of an Issuer Order shall authorize the Servicer to execute in the name and on behalf of the Indenture Trustee instruments of satisfaction or cancellation, or of partial or full release or discharge, and other comparable instruments with respect to the Receivables (and the Indenture Trustee shall execute any such documents upon the written request of the Servicer), subject to the obligations of the Servicer under the Transfer and Servicing Agreement.
(c) The Indenture Trustee shall, at such time as there are no Notes outstanding, upon receipt of an Issuer Order, release and transfer, without recourse, all of the Collateral that secured the Notes (other than any cash held for the payment of the Notes pursuant to Section 3.3). The Indenture Trustee shall release property from the lien of this Indenture pursuant to this Section 8.6 only upon receipt of an Issuer Order accompanied by an Officers Certificate and shall have no liability for any releases pursuant to the provisions of this Section 8.6.
SECTION 8.7 Establishment of Reserve Account. A Reserve Account for a Series, if any, shall be established and maintained in accordance with the terms of the related Indenture Supplement.
ARTICLE IX
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
SECTION 9.1 Distributions and Reports to Noteholders. Distributions shall be made to, and reports shall be made available to, Noteholders as set forth in the applicable Indenture Supplement. The identity of the Noteholders with respect to distributions and reports shall be determined according to the immediately preceding Record Date.
ARTICLE X
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 10.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior notice to each Rating Agency with respect to the Notes of all Series rated by such Rating Agency, if applicable, the Issuer, the Servicer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the parties thereto, for any of the following purposes:
(i) to correct or amplify the description of any property at any time subject to the lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the lien of this Indenture, or to subject to the lien of this Indenture additional property;
(ii) to add to the covenants of the Issuer, for the benefit of the Holders of the Notes, or to surrender any right or power herein conferred upon the Issuer;
(iii) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee for the benefit of the Holders of the Notes;
(iv) to evidence and provide for the acceptance of the appointment hereunder by a successor indenture trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one indenture trustee, pursuant to the requirements of Article VI;
(v) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture that may be inconsistent with any other provision herein or in any supplemental indenture or to make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture; provided, that as evidenced by an Officers Certificate, such action shall not adversely affect the interests of the Holders of any Series or Class of Outstanding Notes and if applicable, the Rating Agency Condition shall have been satisfied;
(vi) to provide for the issuance of one or more new Series of Notes, in accordance with the provisions of Section 2.12 hereof;
(vii) to provide for the termination of any interest rate swap agreement or other form of credit enhancement in accordance with the provisions of the related Indenture Supplement; or
(viii) to resolve any inconsistency between the provisions of this Indenture or any Supplement pursuant to which a Series of Notes was issued to the final offering memorandum related to the offering of the Notes, if any.
(b) The Issuer, the Servicer and the Indenture Trustee, when authorized by an Issuer Order, may, also without the consent of any Noteholders of any Outstanding Notes, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying
in any manner the rights of the Holders of the Notes under this Indenture; provided, however, that (i) the Issuer shall have delivered to the Indenture Trustee (A) an Officers Certificate of the Issuer, dated the date of any such action, stating that the Issuer reasonably believes that such action will not have an Adverse Effect and (B) a Tax Opinion, and (ii) if applicable, the Rating Agency Condition shall have been satisfied with respect to such indenture or indentures supplemental hereto. Additionally, notwithstanding the preceding sentence, the Issuer, the Servicer and the Indenture Trustee, when authorized by an Issuer Order, may, without the consent of any Noteholders of any Series then Outstanding or the Series Enhancers for any Series, enter into an indenture or indentures supplemental hereto to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or any portion of the Issuer to avoid the imposition of state or local income or franchise taxes imposed on the Issuers property or its income; provided, however, that (i) the Transferor delivers to the Indenture Trustee an Officers Certificate to the effect that the proposed amendments meet the requirements set forth in this Section 10.1(b); (ii) the Transferor delivers a Tax Opinion in connection with such indenture or indentures supplemental hereto; and (iii) such amendment does not affect the rights, duties or obligations of the Indenture Trustee or the Servicer hereunder without its consent.
SECTION 10.2 Supplemental Indentures With Consent of Noteholders. The Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may, with the consent of the Holders of more than 50% of the Outstanding Amount of the Notes of each adversely affected Series or Class, as applicable, of Notes Outstanding, by Act of such Holders delivered to the Issuer, the Servicer and the Indenture Trustee and, to the extent that any such affected Series or Class is rated by a Rating Agency, upon satisfaction of the Rating Agency Condition, if applicable, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of such Noteholders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby:
(a) change the due date of any installment of principal of or interest on any Note, or reduce the principal amount thereof, the interest rate specified thereon or the redemption price with respect thereto or change any place of payment where, or the coin or currency in which, any Note or any interest thereon is payable, change provisions of this Indenture relating to the application of collections on, or the proceeds of the sale of, all or any portion of the Collateral to payment of principal of (and premium, if any) or interest on the Notes, or change any place of payment where, or the coin or currency in which, any Note or any interest thereon is payable or change the provisions of this Indenture relating to the application of collections on, or the proceeds of the sale of, all or any portion of the Collateral to payment of principal of (and premium, if any) or interest on the notes;
(b) impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date);
(c) reduce the percentage which constitutes a majority of the Outstanding Amount of the Notes of any Series outstanding the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences as provided for in this Indenture;
(d) reduce the percentage of the Outstanding Amount of any Notes, the consent of the Holders of which is required to direct the Indenture Trustee to sell or liquidate the Collateral if the proceeds of such sale would be insufficient to pay the principal amount and accrued but unpaid interest on the outstanding Notes of such Series;
(e) modify any of the provisions of this Indenture in such manner as to affect the calculation of the amount of any payment of interest or principal (and premium, if any) due on any Note on any Payment Date (including the calculation of any of the individual components of such calculation) or to affect the rights of the Holders of Notes to the benefit of any provisions for the mandatory redemption of the Notes contained herein;
(f) decrease the percentage of the Outstanding Amount of the Notes required to amend the sections of this Indenture which specify the applicable percentage of the aggregate principal amount of the Notes of such Series necessary to amend the Indenture or any Transaction Documents which require such consent;
(g) modify or alter the provisions of this Indenture regarding the voting of Notes held by the Issuer, any other Obligor on the Notes, a Seller or any Affiliate thereof; or
(h) permit the creation of any Lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Collateral for any Notes or, except as otherwise permitted or contemplated herein, terminate the lien of this Indenture on any such Collateral at any time subject hereto or deprive the Holder of any Note of the security provided by the lien of this Indenture.
It shall not be necessary for any Act of Noteholders under this Section 10.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer, the Servicer and the Indenture Trustee of any Indenture Supplement pursuant to this Section 10.2, the Indenture Trustee shall make available to the Holders of the Notes to which such amendment or supplemental indenture relates written notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 10.3 Direction to Indenture Trustee. (a) The Issuer hereby authorizes and directs the Indenture Trustee to execute this Indenture, any future supplements or amendments hereto or to the other Transaction Documents, and any further instruments as may be necessary in connection therewith to accomplish any change or modification as the Issuer may direct subject to Sections 10.1 or 10.2, as applicable.
(a) Prior to the execution by the Indenture Trustee of any supplement or amendment hereto or to any Transaction Document, the Issuer will deliver to the Indenture Trustee an Opinion of Counsel (or, in lieu thereof with the consent of all Noteholders, an Officers Certificate of the Administrator) upon which the Indenture Trustee may conclusively rely, stating that the amendment is permitted by this Indenture and the other Transaction Documents, as applicable, and that all conditions precedent to the supplement or amendment have been satisfied or waived. Notwithstanding anything to the contrary herein, the Indenture Trustee is not obligated to enter into any amendment or supplement that adversely affects the Indenture Trustees rights, powers, duties, obligations, liabilities, indemnities or immunities under this Indenture.
SECTION 10.4 Effect of Supplemental Indenture. Upon the execution of any supplemental indenture under this Article X, this Indenture shall be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuer, the Servicer and the Holders of the Notes shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and the terms and conditions of any such supplemental indenture shall be deemed to be a part of this Indenture for any and all purposes.
SECTION 10.5 Conformity with Trust Indenture Act. Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article X shall conform to the requirements of the TIA as then in effect so long as this Indenture shall then be qualified under the TIA.
SECTION 10.6 Amendments to Transaction Documents. In the event that the Indenture Trustees prior consent is required in order to enter into an amendment, waiver, supplement, or similar agreement to another Transaction Document for which the Transferor has not delivered an Officers Certificate stating that there is no Adverse Effect, the Indenture Trustee shall consent to such amendment, waiver, supplement or similar agreement only to the extent that the Indenture Trustee is directed to do so by the Holders of Outstanding Notes evidencing more than 66-2/3% of the Outstanding Amount of the Notes of each adversely affected Series.
ARTICLE XI
TERMINATION
SECTION 11.1 Termination of Trust. This Indenture and the respective obligations and responsibilities of the Indenture Trustee created hereby (other than the obligation of the Indenture Trustee to make payments to Noteholders as hereinafter set forth) shall terminate, except with respect to the duties described in Section 11.2(b), on the date on which there are no Notes Outstanding.
SECTION 11.2 Final Distribution.
(a) The Servicer shall give the Indenture Trustee at least thirty (30) days prior notice of the Payment Date on which the Noteholders of any Series or Class may surrender their Notes for payment of the final distribution on and cancellation of such Notes. Such notice shall be accompanied by an Officers Certificate of the Servicer setting forth the information specified in Section 3.05 of the Transfer and Servicing Agreement covering the period during the then-current calendar year through the date of such notice. Not later than the fifth day of the month in which the final distribution in respect of such Series or Class is payable to Noteholders, the Indenture Trustee shall provide notice to Noteholders of such Series or Class specifying (i) the date upon which final payment of such Series or Class will be made upon presentation and surrender of Notes of such Series or Class at the office or offices therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such payment date is not applicable, payments being made only upon presentation and surrender of such Notes at the office or offices therein specified. The Indenture Trustee shall give such notice to the Registrar and the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any Series or Class (or the termination of the Issuer), except as otherwise provided in this paragraph, all funds then on deposit in the Collection Account and any Series Account allocated to such Noteholders shall continue to be held in trust in an account with the corporate trust department for the benefit of such Noteholders, and the Paying Agent or the Indenture Trustee shall pay such funds to such Noteholders upon surrender of their Notes, if certificated (and any excess shall be paid in accordance with the terms of the Indenture Supplement and Series Enhancement, if any, for such Series or Class). In the event that all such Noteholders shall not surrender their Notes for cancellation within six months after the date specified in the notice from the Indenture Trustee described in paragraph (a), the Indenture Trustee shall give a second notice to the remaining such Noteholders to surrender their Notes for cancellation and receive the final distribution with respect thereto. If within one year after the second notice all such Notes shall not have been surrendered for cancellation, the Indenture Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining such Noteholders concerning surrender of their Notes, and the cost thereof shall be paid out of the funds in the Collection Account or any Series Account held for the benefit of such Noteholders. The Indenture Trustee and the Paying Agent shall pay to the Issuer any monies or property held by them for the payment of principal or interest that remains unclaimed for two years. After payment to the Transferor, Noteholders entitled to the money must look to the Transferor for payment as general creditors unless an applicable abandoned property law designates another Person.
SECTION 11.3 Transferors Termination Rights. Upon the satisfaction and discharge of this Indenture, at the written direction of the Issuer, the Indenture Trustee shall assign and convey to the Holder of the Equity Certificate or any of their designees, without recourse, representation or warranty, all right, title and interest of the Issuer in the Receivables and the Related Rights, whether then existing or thereafter created, all Recoveries related thereto, all monies due or to become due and all amounts received or receivable with respect thereto (including all moneys then held in the Collection Account or any Series Account) and all proceeds thereof, except for amounts held by the Indenture Trustee pursuant to Section 11.2(b). The Indenture Trustee shall execute and deliver such instruments of transfer and assignment, in each case without recourse, as shall be prepared and reasonably requested by the Transferor to
vest in the Holder of the Equity Certificate or any of their designees all right, title and interest which the Indenture Trustee had in the Collateral and such other property.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 Compliance Certificates.
(a) Upon any application or request by the Issuer to the Indenture Trustee in any capacity to take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee upon request: (i) an Officers Certificate of the Issuer stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section 12.1, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished.
Every certificate with respect to compliance with a condition or covenant provided for in this Indenture (other than certificates signed by the Owner Trustee on behalf of the Issuer pursuant to direction under the Trust Agreement) shall include:
(i) a statement that each signatory of such certificate has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based;
(iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with;
(iv) the Rating Agency Condition, as applicable, shall have been satisfied; and
(v) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit with the Indenture Trustee of any Collateral or other property or securities that is to be made the basis for the release of any property or securities subject to the lien of this Indenture, the Issuer shall, in addition to any obligation imposed in Section 12.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of each Person
signing such certificate as to the fair value (within 90 days of such deposit) to the Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (b)(i) above, the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value to the Issuer of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then current fiscal year of the Issuer, as set forth in the certificates delivered pursuant to clause (i) above and this clause (b)(ii), is 10% or more of the Outstanding Amount of the Notes, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuer as set forth in the related Officers Certificate is less than $25,000 or less than one percent of the outstanding Notes.
(iii) Other than with respect to the release of any Defaulted Receivables, whenever any property or securities are to be released from the lien of this Indenture, the Issuer shall also furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such Person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of any signatory thereof as to the matters described in clause (b)(iii) above, the Issuer shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property, other than Defaulted Receivables, or securities released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in the certificates required by clause (b)(iii) above and this clause (b)(iv), equals 10% or more of the Outstanding Amount of the Notes, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officers Certificate is less than $25,000 or less than one percent of the outstanding Notes.
(v) Notwithstanding Section 2.11 or any other provision of this Section 12.1, the Issuer may (A) collect, liquidate, sell or otherwise dispose of Receivables and related Trust Assets and proceeds of both as and to the extent permitted or required by the Basic Documents, (B) make cash payments out of the Trust Accounts as and to the extent permitted or required by the Transaction Documents and (C) take any other action not inconsistent with the TIA.
SECTION 12.2 Form of Documents Delivered to Indenture Trustee.
(a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officers certificate or opinion is based are erroneous. Any such certificate of an officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, the Transferor, or the Issuer, stating that the information with respect to such factual matters is in the possession of the Servicer, a Seller, or the Issuer, unless such officer or counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
(d) Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuers compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustees right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI.
SECTION 12.3 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by an agent duly appointed in writing and satisfying any requisite percentages as to minimum number or dollar value of outstanding principal amount represented by such Noteholders; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 12.3.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Notes shall bind the Holder (and any transferee thereof) of every Note issued upon the registration thereof in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 12.4 Notices. Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents provided or permitted by the Agreement to be made upon, given or furnished to, or filed with:
(a) the Indenture Trustee by any Noteholder, the Servicer or by the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to a Responsible Officer, by facsimile transmission, electronic transmission or mailed by certified mail, or by other means acceptable to the Indenture Trustee to the Indenture Trustee addressed to it at its Corporate Trust Office;
(b) the Issuer by the Indenture Trustee, the Servicer or any Noteholder shall be sufficient for every purpose hereunder if in writing and (i) mailed by certified mail, to the Issuer addressed to it at USCC Master Note Trust, at 30 N. LaSalle, Suite 4000, Chicago, IL 60602, Attention: John M. Toomey, Telephone: 312-592-5308, Facsimile: 608-830-5530, Electronic Mail: John.Toomey@tdsinc.com with a copy to (which shall not constitute notice): USCC Master Note Trust, 8410 West Bryn Mawr Avenue, Chicago, Illinois 60631, Attention: Steven T. Campbell, Telephone: 773-399-4850, Facsimile: 773-399-8959, Electronic Mail: steve.campbell@uscelluar.com and Sidley Austin LLP, One S. Dearborn Street, Chicago, Illinois 60603, Attention: Stephen P. Fitzell, General Counsel, Telephone: (312) 853-7379, Facsimile: (312) 853-7036, Electronic Mail: sfitzell@sidley.com, or at any other address previously furnished in writing to the Indenture Trustee and the Servicer by the Issuer or (ii) delivered electronically to the address previously furnished in writing to the Indenture Trustee. A copy of each notice to the Issuer shall be sent in writing and mailed by certified mail, to USCC Master Note Trust at the address listed in (i) above;
(c) the Servicer, by any other party hereto or any Noteholder shall be sufficient for every purpose hereunder if mailed by registered or certified mail, to USCC Services, LLC, at 30 N. LaSalle, Suite 4000, Chicago, IL 60602, Attention: John M. Toomey, Telephone: 312-592-5308, Facsimile: 608-830-5530, Electronic Mail: John.Toomey@tdsinc.com with a copy to (which shall not constitute notice): USCC Services, LLC, 8410 West Bryn Mawr Avenue, Chicago, Illinois 60631, Attention: Steven T. Campbell, Telephone: 773-399-4850, Facsimile: 773-399-8959, Electronic Mail: steve.campbell@uscelluar.com and Sidley Austin LLP, One S. Dearborn Street, Chicago, Illinois 60603, Attention: Stephen P. Fitzell, General Counsel, Telephone: (312) 853-7379, Facsimile: (312) 853-7036, Electronic Mail: sfitzell@sidley.com; and
(d) the Transferor, by any other party hereto or any Noteholder shall be sufficient for every purpose hereunder if mailed by registered or certified mail, to USCC Receivables Funding LLC, at 30 N. LaSalle, Suite 4000, Chicago, IL 60602, Attention: John M. Toomey, Telephone: 312-592-5308, Facsimile: 608-830-5530, Electronic Mail: John.Toomey@tdsinc.com with a copy to (which shall not constitute notice): USCC Receivables Funding LLC, 8410 West Bryn Mawr Avenue, Chicago, Illinois 60631, Attention: Steven T. Campbell, Telephone: 773-399-4850, Facsimile: 773-399-8959, Electronic Mail: steve.campbell@uscelluar.com and Sidley Austin LLP, One S. Dearborn Street, Chicago, Illinois 60603, Attention: Stephen P. Fitzell, General Counsel, Telephone: (312) 853-7379, Facsimile: (312) 853-7036, Electronic Mail: sfitzell@sidley.com.
SECTION 12.5 Notices to Noteholders; Waiver.
(a) Where the Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided or subsequently agreed to by the applicable Noteholder) if in writing and (i) mailed by registered or certified mail or national overnight courier service or (ii) delivered electronically in a manner acceptable to the Servicer, the Owner Trustee on behalf of the Issuer and the Indenture Trustee, to each Noteholder affected by such event, at its address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice which is mailed in the manner herein provided shall conclusively be presumed to have been duly given.
(b) Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(c) In the event that, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to any Rating Agency (if applicable), failure to give such notice shall not affect any other rights or obligations created hereunder and shall not under any circumstances constitute a Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default.
SECTION 12.6 Alternate Payment and Notice Provisions. Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuer, with the consent of the Indenture Trustee, may enter into any agreement with any Holder of a Note providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Holder, that
is different from the methods provided for in this Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements.
SECTION 12.7 Conflict with Trust Indenture Act. If this Indenture is or is required to be qualified under the TIA, the provisions of TIA §§ 310 through 317 that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein; provided, that unless and until this Indenture is required to be qualified under the TIA, such provisions shall not be deemed to be a part of this Indenture.
SECTION 12.8 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 12.9 Successors and Assigns. All covenants and agreements in this Indenture by the Issuer and the Servicer shall bind their respective successors and assigns, whether so expressed or not. All covenants and agreements of the Indenture Trustee in this Indenture shall bind its successors, co trustees and agents.
SECTION 12.10 Separability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.11 Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Noteholders and the Transferor, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 12.12 GOVERNING LAW. THIS INDENTURE AND EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 12.13 JURISDICTION. EACH OF THE PARTIES TO THIS INDENTURE AND EACH NOTEHOLDER, BY ITS ACCEPTANCE OF A NOTE, HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES AND EACH NOTEHOLDER, BY ITS ACCEPTANCE OF A NOTE, HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS.
SECTION 12.14 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS INDENTURE AND EACH NOTEHOLDER, BY ITS ACCEPTANCE OF A NOTE, HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS INDENTURE OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO AND EACH NOTEHOLDER, BY ITS ACCEPTANCE OF A NOTE, AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO AND EACH NOTEHOLDER, BY ITS ACCEPTANCE OF A NOTE, FURTHER AGREE THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 12.14 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OF THIS INDENTURE OR A TRANSACTION DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUPPLEMENTAL INDENTURES, SUBSEQUENT AMENDMENTS, AMENDMENTS AND RESTATEMENTS, OR MODIFICATIONS TO THIS INDENTURE OR ANY OTHER TRANSACTION DOCUMENT.
SECTION 12.15 Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 12.16 Trust Obligation. No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity). For all purposes of this Indenture, in the performance of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust Agreement.
SECTION 12.17 No Petition. The Indenture Trustee and the Servicer, by entering into this Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree that they will not at any time institute against the Issuer or the Transferor, or join in any institution against the Issuer or the Transferor, any bankruptcy, reorganization, arrangement, receivership, insolvency or liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture or any of the other Transaction Documents. The foregoing shall not limit the rights of the Indenture Trustee, the Servicer, or any Noteholder to file any claim in, or otherwise take any action with respect to, any insolvency proceeding that was instituted against the Issuer by any Person other than the Indenture Trustee, the Servicer or such Noteholder, respectively.
SECTION 12.18 Confidentiality.
(a) The parties shall treat as confidential this Indenture, the transactions contemplated hereunder and other information received in connection with this Indenture or the performance thereof that is obtained by the other party as a result of the working relationship between the parties, whether obtained prior to or after the date hereof (the Confidential Information). The parties shall not disclose any Confidential Information to anyone, except to any assignees, potential assignees, the Indenture Trustee, potential participants, or any of their respective directors, managers, executives, employees, affiliates, auditors, lawyers, regulators or other governmental authorities, advisors, authorized agents and/or duly appointed representatives who have a specific and reasonable interest in knowing, viewing and using such Confidential Information or as may otherwise be required by applicable law.
(b) Notwithstanding Section 12.18(a), in accordance with Section 3.04 of the Transfer and Servicing Agreement, the Indenture Trustee shall make each Monthly Report available via its website to the Noteholders.
SECTION 12.19 USA Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, U.S. Bank National Association, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this Indenture agree that they will provide U.S. Bank National Association with such information as it may request in order for U.S. Bank National Association to satisfy the requirements of the USA Patriot Act.
SECTION 12.20 Limitation on Owner Trustee Liability. It is expressly understood and agreed by the parties hereto that (a) this Indenture is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as owner trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it pursuant to the Trust Agreement, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by Wilmington Trust, National Association but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture or any other related documents.
IN WITNESS WHEREOF, the Issuer, the Servicer and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers thereunto duly authorized and attested, all as of the day and year first above written.
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USCC MASTER NOTE TRUST | |
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Wilmington Trust, National Association, not in its individual capacity, but solely as Owner Trustee on behalf USCC Master Note Trust |
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U.S. BANK NATIONAL ASSOCIATION, | |
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as Indenture Trustee, Paying Agent, Registrar and Securities Intermediary | |
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USCC SERVICES, LLC, | |
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[Signature Page to Master Indenture]
AGREED AND ACCEPTED |
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(with respect to Section 6.7(c)): |
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UNITED STATES CELLULAR CORPORATION |
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[Signature Page to Master Indenture]
ANNEX A
DEFINITIONS
Accumulation Period shall mean, with respect to any Series or any Class within a Series, a period following the Revolving Period during which Collections of Receivable Payments are accumulated in an account for the benefit of the Noteholders of such Series or Class within such Series, which shall be the controlled accumulation period, the early accumulation period, the optional accumulation period, the partial accumulation period or other accumulation period, in each case as defined with respect to such Series in the related Indenture Supplement.
Act shall have the meaning specified in Section 12.3(a) of the Indenture.
Addition Cut-Off Date shall have the meaning specified in Section 2.01(a) of the Receivables Purchase Agreement.
Addition Date shall mean with respect to any Additional Receivable, the date upon which such Receivable is transferred to the Trust pursuant to the terms of the Transfer and Servicing Agreement and included as part of the Trust Assets.
Additional Receivable shall mean any Receivable, including any Replacement Receivable, transferred to the Trust by the Transferor pursuant to the terms of the Transfer and Servicing Agreement after the Initial Addition Date, in each case identified on the related Contract Additions Report and the updated Receivables Schedule.
Adjusted Pool Principal Balance shall mean, as of any date of determination, an amount equal to the greater of (a) the Aggregate Receivables Balance as of the close of business on the last day of the immediately preceding Collection Period (or with respect to the first Collection Period, the Aggregate Receivables Balance as of the Initial Cut-off Date) and (b) the sum of the numerators used to calculate the Investor Percentages for allocations with respect to Receivable Payments, for all Series outstanding as of the date as to which such determination is being made.
Adjustment Payment shall have the meaning specified in Section 3.10(a) of the Transfer and Servicing Agreement.
Administration Agreement shall mean that certain Administration Agreement, dated as of the Initial Closing Date, among the Administrator and the Trust, as the same may be amended, supplemented or otherwise modified from time to time.
Administrator shall mean USCC Services, LLC, in its capacity as administrator, or any successor Administrator under the Administration Agreement.
Administrator Replacement Event shall have the meaning specified in Section 10(d) of the Administration Agreement.
Adverse Effect shall mean, with respect to any action, that such action will (a) result in the occurrence of an Amortization Event or an Event of Default or (b) materially and adversely affect the amount or timing of distributions to be made to the Noteholders or any Series Enhancer of any Series or Class pursuant to the Transfer and Servicing Agreement, the Indenture or the related Indenture Supplement.
Advisers Act shall have the meaning specified in Section 2.17(b)(ii)(A)(1) of the Indenture.
Affiliate shall mean, with respect to any specified Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, another Person or a Subsidiary of such other Person; and the terms controlling and controlled have meanings correlative to the foregoing. A Person shall be deemed to control another Person if the controlling Person owns, directly or indirectly, 10% or more of any class of voting securities of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock or otherwise.
Aggregate Receivables Balance means, as of any date of determination, the aggregate of the Receivable Balances of the Receivables that have been transferred to the Trust from time to time under the terms of the Transfer and Servicing Agreement and have become part of the Trust Assets.
Aggregate Trigger Receivables Balance means, as of any date of determination, the aggregate of the Trigger Receivable Balances of the Receivables that have been transferred to the Trust from time to time under the terms of the Transfer and Servicing Agreement and have become part of the Trust Assets.
Aggregate Unadjusted Receivables Balance means, as of any date of determination, the aggregate of the Unadjusted Receivable Balances of the Receivables that have been transferred to the Trust from time to time under the terms of the Transfer and Servicing Agreement and have become part of the Trust Assets.
Allocation Percentage means, for any Series, with respect to Receivable Payments, Miscellaneous Payments, Loss Amounts and Recoveries, the Fixed Allocation Percentage or the Floating Allocation Percentage, as applicable, used to calculate the amounts allocated to such Series with respect to such amounts on any date of determination.
Amortization Event shall mean, with respect to any Series, a Trust Amortization Event or a Series Amortization Event.
Amortization Period shall mean, with respect to any Series or any Class within a Series, a period following the Revolving Period during which Collections of Receivable Payments are distributed to Noteholders, which shall be the controlled amortization period, the rapid amortization period, the optional amortization period, the partial amortization period or other amortization period, in each case as defined with respect to such Series in the related Indenture Supplement.
Applicants shall have the meaning specified in Section 2.9 of the Indenture.
Asset Base shall mean, with respect to any Series, the meaning specified in the related Indenture Supplement.
Asset Base Deficiency shall mean, with respect to any Series, the meaning specified in the related Indenture Supplement.
Authorized Officer shall mean:
(a) with respect to the Issuer, any officer of the Administrator, any officer of the Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Issuer and who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Owner Trustee to the Indenture Trustee on the Initial Closing Date (as such list may be modified or supplemented from time to time thereafter) and any officer of the Servicer who is identified on the list of Authorized Officers (containing the specimen signatures of such officers) delivered by the Servicer to the Indenture Trustee on the Initial Closing Date (as such list may be modified or supplemented from time to time thereafter);
(b) with respect to the Transferor, any officer of the Transferor who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Transferor to the Indenture Trustee on the Initial Closing Date (as such list may be modified or supplemented from time to time thereafter); and
(c) with respect to the Servicer, any officer of the Servicer who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Servicer to the Indenture Trustee on the Initial Closing Date (as such list may be modified or supplemented from time to time thereafter).
Available Funds shall mean, with respect to any Series, the meaning specified in the related Indenture Supplement.
Back-Up Servicer means, at any time, the Person then acting as Back-Up Servicer pursuant to a Back-Up Servicing Agreement, if any.
Back-Up Servicer Fee shall mean the fee agreed to between the Issuer, the Servicer and the Back-Up Servicer in connection with a Back-Up Servicing Agreement, which fee may be amended from time to time by the Issuer, the Servicer and the Back-Up Servicer.
Back-Up Servicing Agreement means a Back-Up Servicing Agreement, if any, among the Issuer, the Servicer, and a Person that has agreed to perform the back-up servicing duties specified therein for the benefit of the Issuer and the Noteholders, as amended, restated, supplemented or otherwise modified from time to time.
Bankruptcy Code shall mean title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.
Beneficial Owner shall mean, with respect to a Book-Entry Note, the Person who is the owner of such Book-Entry Note, as reflected on the books of the Clearing Agency or Foreign Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency or Foreign Clearing Agency (directly as a Clearing Agency Participant or as an Indirect Participant, in accordance with the rules of such Clearing Agency or Foreign Clearing Agency).
Benefit Plan shall mean any one of (a) an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (b) a plan as defined in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code, (c) any entity whose underlying assets include plan assets by reason of such employee benefit plans or plans investment in such entity or (d) any governmental, church, non-U.S. or other plan subject to any federal, state, local or non-U.S. law that is substantially similar to Title I of ERISA or Section 4975 of the Code.
Book-Entry Notes shall mean beneficial interests in the Notes, ownership and transfers of which shall be made through book entries by a Clearing Agency or Foreign Clearing Agency as described in Section 2.13 of the Indenture.
Business Day shall mean any day other than (a) a Saturday, a Sunday, or a legal holiday, (b) any other day on which national banking associations or state banking institutions in New York City, New York, Wilmington, Delaware, Chicago, Illinois, St. Paul, Minnesota, or any other state in which the principal executive offices of the Servicer, USCC, the Owner Trustee, or the corporate trust offices of the Indenture Trustee or Paying Agent, as the case may be, are located, are authorized or obligated by law, executive order or governmental decree to be closed or (c) for purposes of any particular Series, any other day specified in the related Indenture Supplement.
Change of Responsibility Receivable shall mean a Transferred Receivable where, in accordance with the Credit and Collection Policies, the related Obligor requests that the responsibility for payment obligations under the related Contract be transferred to a new transferee Obligor (which new Obligor may have a different credit profile than the transferring Obligor and will be evaluated by the Servicer at such time in accordance with the Credit and Collection Policies), and such change in responsibility request is accepted by the Servicer or any of its Affiliates without payment in full of all amounts owing under the related Contract.
Class shall mean, with respect to any Series, any one of the classes of Notes of that Series.
Clearing Agency shall mean an organization registered as a clearing agency pursuant to Section 17A of the Exchange Act and serving as clearing agency for a Series or Class of Book-Entry Notes.
Clearing Agency Participant shall mean a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
Clearstream shall mean Clearstream Banking Luxembourg, a professional depository incorporated under the laws of Luxembourg, and its successors.
Closing Date shall mean, with respect to any Series, the closing date specified in the related Indenture Supplement.
Code shall mean the Internal Revenue Code of 1986 and, unless otherwise specified herein, shall include all amendments, modifications and supplements thereto from time to time.
Collateral shall have the meaning specified in the Granting Clause of the Indenture.
Collection Account shall have the meaning specified in Section 8.3 of the Indenture.
Collection Period shall mean, with respect to each Payment Date and the related Determination Date, unless otherwise provided in an Indenture Supplement, the calendar month immediately preceding the month in which such Payment Date occurs.
Collections shall mean, with respect to any Receivable, any payments (or equivalent) made by or on behalf of the related Obligor with respect to such Receivable, in the form of cash, checks, wire transfers, electronic transfers, ATM transfers or any other form of payment in accordance with a Contract in effect from time to time and all other amounts specified by the Transfer and Servicing Agreement, the Indenture or any Indenture Supplement as constituting Collections, and any other cash proceeds of such Receivable, including Recoveries and cash proceeds of Related Rights with respect to such Receivable, and Repurchase Amounts paid by the Transferor.
Collections Shortfalls with respect to a Series shall have the meaning specified in the Indenture Supplement with respect to such Series.
Commission shall mean the Securities and Exchange Commission and its successors in interest.
Contract shall mean, with respect to a Receivable, the retail installment contract, credit sale contract, retail installment obligation, or retail installment sale agreement or any other agreement between an Originator and an Obligor pursuant to or under which such Obligor shall be obligated to pay for a wireless communication device sold by such Originator, along with the agreements between the Originator or an Affiliate of such Originator and the related Obligor governing the terms and conditions of such contract, as such agreements or statements may be amended, modified or otherwise changed from time to time.
Contract Additions Report shall mean, with respect to each Addition Date, the applicable schedule listing each Additional Receivable (or with respect to the Initial Addition Date, the Initial Receivables) (a) sold to the Transferor by the Seller under the Receivables Purchase Agreement and (b) transferred to the Trust by the Transferor under the Transfer and Servicing Agreement, on the Addition Date on which such file is delivered in accordance with the terms of the Receivables Purchase Agreement and Transfer and Servicing Agreement, respectively, and incorporated by reference into the Indenture, which schedules shall be authenticated (within the meaning of the UCC) by the Transferor and shall constitute a security
agreement. A form of the Contract Additions Report is attached as an exhibit to each of the Receivables Purchase Agreement and the Transfer and Servicing Agreement.
Corporate Trust Office means (a) for securities transfer purposes and for purposes of presentment and surrender of any Notes for final distribution thereon, U.S. Bank National Association, at 111 Fillmore Ave, St. Paul, MN 55107, Attention: USCC Master Note Trust/Bondholder Services and (b) for all other purposes, the office of the Indenture Trustee at 190 South LaSalle St, 7th Floor, MK-IL-SL7, Chicago, IL 60603, Attention: : Global Structured Finance-USCC Master Note Trust, or at such other location at which at any particular time its corporate trust business shall be administered, or the principal corporate trust office of any successor Indenture Trustee (the address of which the successor Indenture Trustee will notify the Noteholders and the Transferor), and (c) when used in respect of the Owner Trustee, means the corporate trust office of the Owner Trustee in the State of Delaware, which office initially shall be located at Wilmington Trust, National Association, at 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Capital Markets, or such other office at such other address in the State of Delaware as the Owner Trustee may designate from time to time by written notice to the Servicer, the Indenture Trustee.
Credit and Collection Policies shall mean, with respect to the Receivables and Related Rights, those policies and procedures of USCC Services (or one of its Affiliates) relating to the operation of its retail equipment installment plan sales contract financing business, including the established policies and procedures for determining the creditworthiness of sales contract customers, and relating to the origination, underwriting, servicing, administration, and maintenance of and collection of retail equipment installment plan sales contract receivables, as such policies and procedures may be amended, modified, or otherwise changed from time to time subject to Section 6.02 of the Transfer and Servicing Agreement and subject to any Indenture Supplement or Note Purchase Agreement relating to any Series. If a Back Up Servicer is appointed as Successor Servicer, Credit and Collection Policies shall mean the customary and usual servicing, administration and collection practices and procedures used by servicing companies of comparable size and experience to the Back-Up Servicer for servicing receivables comparable to the Receivables which the Back-Up Servicer services for its own account or in the capacity as a back-up servicer.
Custodial Locations shall mean, with respect to the Custody Files, the following locations:
(a) USCC, 5117 West Terrace Drive, Madison WI 53707; and
(b) Access Information Management, 3700 Commerce Drive, Madison, WI 53719.
Custodian shall mean USCC Services, LLC, in its capacity as custodian under the Transfer and Servicing Agreement.
Custody Files shall mean an electronic or tangible record relating to the Contracts relating to the Receivables, all right title and interest in which has been conveyed from time to time by the applicable Originator to the Seller pursuant to the Receivables Sale
Agreement, and then sold by the Seller to the Transferor pursuant to the Receivables Purchase Agreement, and subsequently transferred, assigned, set over and conveyed by the Transferor to the Trust pursuant to the Transfer and Servicing Agreement, and pledged by the Trust to the Indenture Trustee pursuant to the Indenture.
Date of Processing shall mean, with respect to any transaction or receipt of Collections, the date on which such transaction or receipt of Collections is first recorded on the Servicers computer systems, which recording or processing shall not be delayed as a result of negligence or intentional delay on the part of the Servicer; provided, that with respect to any Collections received on an Additional Receivable during the period from the applicable Addition Cut-Off Date to the applicable Addition Date, the Date of Processing solely with respect to Collections during this period shall mean the applicable Addition Date for such Receivable.
DBRS shall mean DBRS, Inc., and its successors.
Defaulted Receivable shall mean, as of any date of determination, any Receivable (without duplication) which (a) is sixty-one (61) days or more past due, (b) has been charged off as uncollectible in accordance with the Credit and Collection Policies, or (c) has been identified as fraudulent and has not been otherwise written-off or adjusted as of such date.
Default shall mean any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.
Definitive Notes shall mean Notes in definitive, fully registered form.
Delinquent Receivables shall mean, as of any determination date, the aggregate amount of Receivables that are thirty-one (31) days or more past due, but less than sixty (60) days past due, after its original Due Date, as of the last day of the related Collection Period.
Deposit Date shall mean each day on which the Servicer deposits Collections in the Collection Account.
Determination Date shall mean, unless otherwise specified in the Indenture Supplement for a particular Series, the fifth Business Day preceding the Payment Date.
Dilutions means, with respect to any Receivable, the aggregate amount of any reductions or adjustments in the Receivable Balance of such Receivable as a result of any defective, rejected, returned, repossessed or foreclosed goods or any credit, rebate, sales allowance, discount or other adjustment or setoff.
Dollars, $ or U.S. $ shall mean United States dollars.
DTC shall mean The Depository Trust Company.
Due Date means, with respect to any Receivable, any date on which such Receivable becomes due and payable pursuant to the corresponding Invoice.
Eligible Institution shall mean the Indenture Trustee or any depository institution (which may be the Owner 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), which depository institution at all times (a) is a member of the FDIC and (b) has (i) a
long-term unsecured debt rating in the highest rating category of S&P, Moodys and, if rated by Fitch, of Fitch or (ii) a short-term rating of A-1+ for purposes of S&P, or in the highest rating category of Moodys, and if rated by Fitch, of Fitch.
Eligible Investments shall mean instruments, investment property or other property with respect to any of the following:
(a) direct obligations of, or obligations fully guaranteed as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit (having original maturities of no more than 365 days) of depository institutions or trust companies incorporated under the laws of the United States of America or any state thereof, including the District of Columbia (or domestic branches of foreign banks) and subject to supervision and examination by federal or state banking or depository institution authorities; provided that at the time of the Issuers investment or contractual commitment to invest therein, the short-term debt rating of such depository institution or trust company shall be in the highest rating category of S&P, Moodys and, if rated by Fitch, of Fitch;
(c) commercial paper (having original or remaining maturities of no more than thirty (30) days) having, at the time of the Issuers investment or contractual commitment to invest therein, a rating in the highest rating category of S&P, Moodys and, if rated by Fitch, of Fitch;
(d) demand deposits, time deposits and certificates of deposit which are insured by the FDIC to the maximum allowable amount having, at the time of the Issuers investment therein, a rating in the highest rating category of S&P, Moodys and, if rated by Fitch, of Fitch;
(e) bankers acceptances (having original maturities of no more than 365 days) issued by any depository institution or trust company referred to in clause (b) above; or
(f) money market funds having, at the time of the Issuers investment therein, a rating in the highest rating category of S&P, Moodys and, if rated by Fitch, of Fitch.
Eligible Receivable shall mean any Receivable, which (i) in the case of the Initial Receivables, as of the Initial Addition Date, and, (ii) in the case of any Additional Receivable, as of the applicable Addition Date, meets the following criteria:
(a) it is in existence and maintained by the applicable Originator or the Seller;
(b) it is payable in United States dollars;
(c) it has an obligor who has provided, as his or her most recent billing address, an address located in the United States or a military address and is not identified by the applicable Originator or the Seller in its computer files as being the subject of a voluntary or involuntary bankruptcy proceeding;
(d) it is not a Defaulted Receivable or Delinquent Receivable;
(e) it has not been identified by the applicable Originator or the Seller or the relevant obligor as having been incurred as a result of fraudulent use;
(f) it does not give rise to any claim against any government agency, including, without limitation, the United States or any state thereof, or any agency, instrumentality, or department thereof;
(g) it has an original term of no more than thirty (30) months;
(h) the sale, assignment or transfer of such Receivable by the applicable Originator or the Seller does not require any consent or approval by the related Obligor and does not contain a confidentiality provision that restricts or purports to restrict the exercise of rights under the Contract by the holder of such Contract;
(i) it has an Obligor who is not an Affiliate of the applicable Originator or the Seller;
(j) it has an Obligor that is an existing customer of the applicable Originator, the Seller or the Servicer in good standing;
(k) it has an Obligor that has made the first Scheduled Payment with respect to the related Contract;
(l) it has a Contract that relates to an agreement for service provided by an Affiliate of the Servicer, which requires the Obligor to maintain service with an Affiliate of the Servicer (a breach of which accelerates amounts due under the Contract), and which contains cross-default provisions with the related service agreement;
(m) it was created in compliance in all material respects with the Servicers underwriting criteria and the Credit and Collection Policies and all Requirements of Law applicable to the applicable Originator and pursuant to a Contract which complies with all Requirements of Law applicable to the applicable Originator;
(n) with respect to which all material consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority required to be obtained, effected or given by the applicable Originator or the Seller in connection with the creation of such Receivable or the execution, delivery and performance by the applicable Originator or the Seller of its obligations, if any, under the related Contract have been duly obtained, effected or given and are in full force and effect;
(o) (i) at the time of sale of such Receivable to the Seller, the applicable Originator has good and marketable title thereto and which itself is free and clear of all liens, and (ii) at the time of sale of such Receivable to the Transferor, the Seller has good and marketable title thereto and which itself is free and clear of all liens;
(p) it has been the subject of a valid sale and assignment from (i) the applicable Originator to the Seller of all of such Originators right, title and interest therein, (ii) the Seller to the Transferor of all of the Sellers right, title and interest therein and (iii) the Transferor to the Issuer of all of the Transferors right, title and interest therein;
(q) it is the legal, valid and binding payment obligation of the Obligor thereon, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by applicable Insolvency Laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);
(r) it constitutes an account, general intangible, payment intangible, or chattel paper as defined in Article 9 of the UCC as then in effect in the State of Delaware and the State of New York;
(s) at the time of its sale to the Transferor it has not been waived or modified except as permitted in accordance with the Credit and Collection Policies and which waiver or modification is reflected in the applicable Originators and the Sellers computer file of retail installment sales contracts at the time of its sale to the Transferor;
(t) at the time of its sale to the Transferor, it is not subject to any right of rescission, setoff, counterclaim or any other defense (including the defenses arising out of violations of usury laws), other than defenses arising out of applicable Insolvency Laws or other similar laws affecting the enforcement of creditors rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);
(u) (i) as to which, at the time of its sale to the Seller, the applicable Originator has not taken any action which would impair, or omitted to take any action the omission of which would impair, the rights of the Seller therein, and (ii) as to which, at the time of its sale to the Transferor, the Seller has not taken any action which would impair, or omitted to take any action the omission of which would impair, the rights of the Transferor therein;
(v) as to which, (i) at the time of its sale to the Seller, the applicable Originator has satisfied and fully performed all of its obligations under the related Contract, and (ii) at the time of its sale to the Transferor, the Seller has satisfied and fully performed all of its obligations under the related Contract (if any);
(w) it (i) was originated in the ordinary course of business from the sale of a device, and (ii) satisfies all of the requirements of the Credit and Collection Policies; and
(x) it (i) relates solely to the purchase of a device, (ii) does not have an outstanding balance exceeding $1,250, and (iii) which has not been extended, rewritten, or otherwise modified from the original terms except in accordance with the Transaction Documents.
Eligible Servicer shall mean the Back-Up Servicer, if applicable, pursuant to a Back-Up Servicing Agreement, or an entity which, at the time of its appointment as Servicer, (a) is legally qualified and has the capacity to service the Receivables, (b) has demonstrated the
ability to service professionally and competently a portfolio of similar receivables in accordance with market standards of skill and care, (c) is qualified to use the software that is then being used to service the Receivables or obtains the right to use or has its own software which is adequate to perform its duties under the Transfer and Servicing Agreement, and (d)(i) with respect to an entity that is not an Affiliate of USCC or USCC Services, has a net worth of at least $50,000,000 as of the end of its most recent fiscal quarter, and (ii) with respect to an entity that is an Affiliate of USCC or USCC Services, whose servicing activities as Servicer under the Transaction Documents are guaranteed by the Performance Guarantor under the Performance Guaranty.
Enhancement Agreement shall mean any agreement, instrument or document governing the terms of any Series Enhancement or pursuant to which any Series Enhancement is issued or outstanding.
Equity Certificate shall have the meaning specified in the Trust Agreement.
Equity Certificateholder shall have the meaning specified in the Trust Agreement.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended.
Euroclear Operator shall mean Euroclear Bank S.A./N.V., as operator of the Euroclear System or its successor as operator of such system or any system that is a successor to such system.
Event of Default shall mean, with respect to a Series, each Trust Event of Default and each Series Event of Default.
Excess Funding Account shall have the meaning specified in Section 4.01(a) of the Transfer and Servicing Agreement.
Excess Purchase Price shall have the meaning specified in Section 3.01(a) of the Receivables Purchase Agreement.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
Facility Limit shall have, with respect to any Series, the meaning specified in the related Indenture Supplement.
FATCA means Sections 1471 through 1474 of the Code, as of the date hereof, (or any amended or successor provisions), any current or future regulations or official interpretations thereunder or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to such published intergovernmental agreement.
FATCA Information shall have the meaning specified in Section 3.3(g) of the Indenture.
FATCA Withholding Tax means any withholding or deduction imposed under FATCA.
FDIC shall mean the Federal Deposit Insurance Corporation or any successor.
Fitch shall mean Fitch Inc., and its successors.
Fixed Allocation Percentage shall mean, for any Series, with respect to any day during a Collection Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, (a) the numerator of which is the Invested Amount for such Series as of the close of business on the day on which the Revolving Period shall have terminated, and (b) the denominator of which is the Adjusted Pool Principal Balance.
Floating Allocation Percentage shall mean, for any Series, with respect to any day during a Collection Period, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, (a) the numerator of which is the average daily Invested Amount for such Series during such Collection Period (or with respect to the first Collection Period, the period from the Closing Date for such Series to the end of the first Collection Period) and (b) the denominator of which is the Adjusted Pool Principal Balance.
Force Majeure Event shall have the meaning specified in Section 7.01 of the Transfer and Servicing Agreement.
Foreclosure Remedy shall mean the remedy described in Section 5.5(a)(v) of the Indenture.
Foreign Clearing Agency shall mean Clearstream and the Euroclear Operator (or their successors).
GAAP shall mean generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board, the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, consistently applied.
Global Note shall have the meaning specified in Section 2.16 of the Indenture.
Governmental Authority shall mean the United States of America, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Grant means to grant, mortgage, pledge, bargain, warrant, alienate, remise, demise, release, convey, assign, transfer, create, and grant a lien upon and/or a security interest in and right of set-off against, deposit, set over and confirm pursuant to the Indenture. A Grant of the Collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including without
limitation the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Group shall mean, with respect to any Series, the group of Series, if any, in which the related Indenture Supplement specifies such Series to be included as a Sharing Series.
Indenture shall mean the Master Indenture, dated as of December 20, 2017, among the Issuer, the Servicer and the Indenture Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
Indenture Supplement shall mean, with respect to any Series, a supplement to the Indenture, executed and delivered in connection with the original issuance of the Notes of such Series pursuant to Section 10.1(a) of the Indenture, and an amendment to the Indenture executed pursuant to Sections 10.1 or 10.2 of the Indenture, and, in either case, including all amendments thereof and supplements thereto.
Indenture Trustee shall mean U.S. Bank National Association, a national banking association, in its capacity as trustee under the Indenture, its successors in interest and any successor indenture trustee under the Indenture.
Indenture Trustee Fees shall mean the fees payable to the Indenture Trustee on an annual basis which shall be equal to $10,000 per annum, payable annually in advance on the Payment Date occurring in January of each year, commencing January 2019, plus the sum of each Indenture Trustee Series Fee set forth in each Indenture Supplement, if applicable.
Indenture Trustee Series Fee means the annual fee payable to the Indenture Trustee with respect to each series of Notes issued pursuant to an Indenture Supplement as set forth in the related Indenture Supplement.
Independent shall mean, when used with respect to any specified Person, that the Person (a) is in fact independent of the Issuer, any other obligor upon the Notes, the Transferor and any Affiliate of any of the foregoing Persons, (b) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, 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 or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
Independent Certificate shall mean a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 12.1 of the Indenture, made by an Independent appraiser or other expert appointed by an Issuer Order and reasonably acceptable to the Indenture Trustee, and such opinion or certificate shall state that the signer has read the definition of Independent and that the signer is Independent within the meaning thereof.
Independent Director shall mean a member of the board of directors or managers of the Transferor who (i) shall not have been at the time of such Persons appointment or at any time during the preceding five years, and shall not be as long as such Person is a director or manager of the Transferor, (A) a director, officer, employee, partner, shareholder, member, manager or Affiliate of any of the Independent Parties, (B) a supplier to any of the Independent Parties (provided that a provider of registered agent for process services shall not be deemed a supplier), (C) a Person controlling or under common control with any partner, shareholder, member, manager, Affiliate or supplier of any of the Independent Parties (provided that a provider of registered agent for process services shall not be deemed a supplier), or (D) a member of the immediate family of any director, officer, employee, partner, shareholder, member, manager, Affiliate or supplier of any of the Independent Parties (provided that a provider of registered agent for process services shall not be deemed a supplier); (ii) has prior experience as an independent director for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (iii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities; provided, however, that the foregoing shall not prohibit (x) a Person from serving as an Independent Director of the Seller who acts as an Independent Director or Independent Member or in a similar capacity for an Affiliate of the Seller which is organized as a bankruptcy remote, special purpose entity, or (y) a director, officer, employee, partner, shareholder, member, manager or Affiliate of the Owner Trustee or of an Affiliate of the Owner Trustee from serving as an Independent Director.
Independent Parties shall mean, collectively, the Transferor, USCC, the Servicer or any of their respective Subsidiaries or Affiliates (other than the Transferor).
Indirect Participant shall mean other Persons such as securities brokers and dealers, banks and trust companies that clear or maintain a custodial relationship with a participant of DTC, either directly or indirectly.
Ineligible Receivables shall have the meaning specified in Section 2.05(a) of the Transfer and Servicing Agreement.
Initial Addition Date shall have the meaning specified in the Receivables Purchase Agreement.
Initial Addition Notice shall have the meaning specified in the Receivables Purchase Agreement.
Initial Closing Date shall mean December 20, 2017.
Initial Cut-Off Date shall have the meaning specified in the Receivables Purchase Agreement.
Initial Receivables means the Receivables transferred by the Seller to the Transferor on the Initial Addition Date pursuant to the Receivables Purchase Agreement.
Insolvency Event shall mean, with respect to any Person:
(a) such Person shall file a petition commencing a voluntary case under any chapter of the federal bankruptcy laws; or such Person shall file a petition or answer or consent seeking reorganization, arrangement, adjustment, or composition under any other similar Insolvency Law, or shall consent to the filing of any such petition, answer, or consent; or such Person shall appoint, or consent to the appointment of, a custodian, receiver, liquidator, trustee, assignee, sequestrator or other similar official in bankruptcy or insolvency of it or of any substantial part of its property, including in the case of the Trust the Trust Assets; such Person shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or
(b) the commencement by a court having jurisdiction in the premises of an action seeking: (i) a decree or order for relief in respect of such Person in a case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, (ii) the appointment of a custodian, receiver, liquidator, conservator, assignee, trustee, sequestrator, or other similar official of such Person or (iii) the winding up or liquidation of the affairs of such Person, and notwithstanding the objection by such Person, any such action shall have remained undischarged or unstayed for a period of sixty (60) consecutive days or any order or decree providing the sought after relief, remedy or other action shall have been entered.
Insolvency Law shall mean (a) the Bankruptcy Code and any other applicable federal or state liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets, assignment for the benefit of creditors and similar debtor relief laws from time to time in effect in any jurisdiction affecting the rights of creditors generally.
Interested Parties shall have the meaning given to such term in Section 8.03(a) of the Transfer and Servicing Agreement.
Invested Amount shall mean, with respect to any Series and for any date, the amount specified in the related Indenture Supplement.
Investment Company Act shall mean the Investment Company Act of 1940, as amended.
Investor Percentage shall have, with respect to any Series, the meaning specified in the related Indenture Supplement.
Invoice means, with respect to any Receivable, the monthly bill related to such Receivable issued by or on behalf of the Servicer to the related Obligor.
Issuer shall mean USCC Master Note Trust, a Delaware statutory trust.
Issuer Order and Issuer Request shall mean a written order or request signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee.
Lien shall mean any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, equity interest, encumbrance, lien (statutory or other), preference, participation interest, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement under the UCC or comparable law of any jurisdiction to evidence any of the foregoing.
Loss Amount shall mean, for any period, the aggregate outstanding Receivable Balances of all Receivables which became Defaulted Receivables during such period (but not Ineligible Receivables repurchased under Section 2.05 of the Transfer and Servicing Agreement).
Minimum Transferor Amount shall mean, with respect to any date of determination, the product of the Minimum Transferor Percentage and the Aggregate Unadjusted Receivables Balance.
Minimum Transferor Percentage shall mean 8.0% or such other percentage mandated by Requirements of Law or such greater percentage designated from time to time by the Transferor. The Transferor shall provide the Issuer, the Servicer, and the Indenture Trustee with prompt written notice of the designation of a new percentage for the Minimum Transferor Percentage.
Miscellaneous Payments shall mean, with respect to any Determination Date, the sum of Adjustment Payments and Transfer Deposit Amounts on deposit in the Collection Account on such Allocation Date.
Monthly Report shall have the meaning specified in Section 3.04 of the Transfer and Servicing Agreement.
Moodys shall mean Moodys Investors Service, Inc., or its successor.
New Issuance shall have the meaning specified in Section 2.12(a) of the Indenture.
Note Interest Rate shall mean, as of any particular date of determination and with respect to any Series or Class, the interest rate as of such date specified therefor in the related Indenture Supplement.
Note Owner shall mean, with respect to a Book-Entry Note, the Person who is the owner of such Book-Entry Note, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in accordance with the rules of such Clearing Agency).
Note Principal Balance shall have, with respect to any Series, the meaning specified in the related Indenture Supplement.
Note Purchase Agreement shall have, with respect to any Series, the meaning specified in the related Indenture Supplement.
Note Register shall have the meaning specified in Section 2.5 of the Indenture.
Noteholder or Holder shall mean the Person in whose name a Note is registered on the Note Register and, if applicable, the holder of any Global Note, or such other Person deemed to be a Noteholder or Holder in any related Indenture Supplement.
Noteholder Tax Identification Information means properly completed and signed tax certifications (generally with respect to U.S. Federal Income Tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a United States Person within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a person that is not a United States Person within the meaning of Section 7701(a)(30) of the Code).
Notes shall mean all Series of Notes issued by the Issuer pursuant to the Indenture and the applicable Indenture Supplement.
Obligor shall mean, with respect to any Receivable and the related Contract, the Person or Persons party to the Contract who is (are) obligated to make payments with respect to such Receivable.
Officers Certificate shall mean a certificate signed by any Authorized Officer of the Person delivering such certificate.
Opinion of Counsel shall mean a written opinion of counsel, who may, except as otherwise expressly provided, be an employee of the Transferor, the Servicer or the Seller. In addition, for purposes of the Indenture: (a) the opinion shall be addressed to the Indenture Trustee as Indenture Trustee and (b) the opinion shall comply with any applicable requirements of Section 12.1(a) of the Indenture and shall be in form and substance reasonably satisfactory to the Indenture Trustee.
Originator or Originators shall have the meaning specified in the preamble to the Receivables Sale Agreement.
Outstanding shall mean, as of the date of determination, all Notes theretofore issued under the Indenture except:
(a) Notes theretofore cancelled by the Registrar or delivered to the Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Holders of such Notes (provided, however, that if such Notes are to be redeemed, notice
of such redemption has been duly given pursuant to the Indenture or provision therefor, satisfactory to the Indenture Trustee);
(c) Notes deemed to be satisfied and discharged pursuant to Section 4.1 of the Indenture; and
(d) Notes in exchange for or in lieu of other Notes which have been issued pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a bona fide purchaser;
provided, that in determining whether the Holders of the requisite Outstanding Amount of the Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, any other obligor upon the Notes, the Transferor, the Servicer or any Affiliate of any of the foregoing Persons shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that a Responsible Officer of the Indenture Trustee actually knows to be so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgees right so to act with respect to such Notes and that the pledgee is not the Issuer, any other obligor upon the Notes, the Transferor, the Servicer or any Affiliate of any of the foregoing Persons. In making any such determination, the Indenture Trustee may rely on the representations of the pledgee and shall not be required to undertake any independent investigation.
Outstanding Amount means the aggregate principal amount of all Notes Outstanding at the date of determination.
Owner Trustee shall mean Wilmington Trust, National Association, not in its individual capacity, but solely in its capacity as owner trustee under the Trust Agreement, its successors in interest and any successor owner trustee under the Trust Agreement.
Owner Trustee Fees shall mean the fees payable to the Owner Trustee on an annual basis which shall be equal to $5,000 per annum, payable annually in advance on the Payment Date occurring in January of each year, commencing January 2019.
Paying Agent shall mean any paying agent appointed pursuant to Section 2.8 of the Indenture that meets the eligibility standards for the Indenture Trustee specified in Section 6.11 of the Indenture and shall initially be the Indenture Trustee; provided, that if the Indenture Supplement for a Series so provides, a different or additional Paying Agent may be appointed with respect to such Series.
Payment Date shall mean the fifteenth (15th) day of each month or, if such day is not a Business Day, the next succeeding Business Day.
Performance Guarantor means, initially, USCC, and at any other time, the Person acting as guarantor pursuant to a Performance Guaranty, if any.
Performance Guaranty means the Performance Guaranty and Parent Undertaking Agreement, dated December 20, 2017, provided by the Performance Guarantor to the Indenture Trustee for the benefit of the guaranteed parties named therein, as the same may be amended, restated, supplemented or otherwise modified from time to time.
Periodic Remittance Condition shall have the meaning specified in Section 4.02(b) of the Transfer and Servicing Agreement.
Permitted Assignee shall mean any Person who, if it were to purchase Receivables (or interests therein) in connection with a sale hereunder, would not cause the Issuer to be taxable as a publicly traded partnership for U.S. federal income tax purposes.
Person shall mean any person or entity, including any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, governmental entity or other entity of any nature.
Plan shall mean any one of (a) an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (b) a plan as defined in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code or (c) any entity whose underlying assets include plan assets by reason of such employee benefit plans or plans investment in such entity.
Plan Fiduciary shall have the meaning specified in Section 2.17(b)(ii) of the Indenture.
Potential Amortization Event shall mean any event, condition or circumstance that, with the giving of notice or lapse of time, or both, would constitute an Amortization Event.
Potential Servicer Default shall mean any event, condition or circumstance that, with the giving of notice or lapse of time, or both, would constitute a Servicer Default.
Principal Terms shall mean, with respect to any Series, (a) the name or designation; (b) the initial principal amount (or method for calculating such amount) and the Investor Percentage; (c) the Note Interest Rate for each Class of Notes of such Series (or method for the determination thereof); (d) the payment date or dates and the date or dates from which interest shall accrue; (e) the Payment Date; (f) the method for allocating Collections to Noteholders; (g) the designation of any Series Accounts and the terms governing the operation of any such Series Accounts; (h) the Servicing Fee; (i) if applicable, the issuer and terms of any form of Series Enhancements with respect thereto; (j) the terms on which the Notes of such Series may be exchanged for Notes of another Series, purchased by the Transferor or remarketed to other investors; (k) any optional or mandatory Redemption Date or Redemption Dates and the Stated Maturity Date; (l) the number of Classes of Notes of such Series and, if more than one Class, the rights and priorities of each such Class; (m) the extent to which the Notes of such Series will be issuable in temporary or permanent global form (and, in such case, the depositary for such global note or notes, the terms and conditions, if any, upon which such global note may be exchanged, in whole or in part, for Definitive Notes, and the manner in which any interest payable on a temporary or global note will be paid); (n) the priority of such Series with respect to any other Series; (o) whether such Series is a Sharing Series and, if so, in which Group it
belongs, (p) the Series Discount Percentage for such Series; (q) the Facility Limit for such Series; (r) designation of certain periods, including, but not limited to, the Accumulation Period and the Amortization Period; (s) the Back-Up Servicer Fee, if any; and (t) any other terms of such Series.
Proceeding shall mean any suit in equity, action at law or other judicial or administrative proceeding.
Purchase Price shall have the meaning specified in Section 3.01(a) of the Receivables Purchase Agreement (when used with respect to the Receivables Purchase Agreement), and shall have the meaning specified in Section 2.01(b) of the Transfer and Servicing Agreement for all other purposes.
Purchase Price Payment Date shall have the meaning specified in Section 3.01(a) of the Receivables Purchase Agreement.
Qualified Account shall mean a depositary account which is either (i) a segregated trust account with the trust department of a depository institution organized under the laws of the United States of America or any State thereof or the District of Columbia (or any domestic branch of a foreign bank), having a long-term deposit rating of at least A2 by Moodys, having trust powers and acting as trustee for funds deposited in such account or (ii) a segregated account with a depository institution organized under the laws of the United States of America or any State thereof (or any United States branch of a foreign bank) the long-term deposit obligations of which are rated Aa3 or higher by Moodys or the short-term debt obligations of which are rated at least A-1 by S&P and P-1 by Moodys.
Rating Agency shall have, with respect to each Series, the meaning specified in the related Indenture Supplement.
Rating Agency Condition shall mean, with respect to (i)(A) the issuance of an additional Series, (B) any Change of Control of the Performance Guarantor or (C) any other action specified in any Transaction Document which requires the affirmative approval or consent of each Rating Agency, the confirmation issued in writing by each Rating Agency that has issued an outstanding rating with respect to any Series or Class then Outstanding that the rating(s) on such existing Series will not be downgraded or withdrawn as the result of the issuance of such additional Series, the occurrence of such change of control, or other action, and (ii) with respect to any other action, means that each Rating Agency that has issued an outstanding rating with respect to any Series or class then Outstanding shall have been given ten (10) Business Days (or such shorter period as is practicable or acceptable to each Rating Agency) prior notice thereof and within ten (10) Business Days of each Rating Agencys receipt of such notice such Rating Agency shall not have notified the Indenture Trustee or the Issuer in writing that such action will result in a downgrade, qualification or withdrawal of any such outstanding rating; provided, however, that if any such Series or Class has not been rated, the Rating Agency Condition with respect to any such action shall either be defined in the related Indenture Supplement or shall not apply.
Receivable means any indebtedness, payment obligation or other amounts payable by an Obligor from time to time in connection with a Contract, including amounts payable for Scheduled Payments, whether constituting an account, chattel paper, instrument, payment intangible or general intangible arising out of or in connection with the sale of new or used retail equipment installment plan sales contracts, which is sold from time to time by the applicable Originator to the Seller pursuant to the Receivables Sale Agreement, and subsequently sold from time to time by the Seller to the Transferor pursuant to the Receivables Purchase Agreement, and subsequently transferred from time to time by the Transferor to the Trust under the Transfer and Servicing Agreement, and in each case identified on the applicable Contract Additions Report and each updated Receivables Schedule delivered pursuant to the Transaction Documents.
Receivable Balance means, with respect to any Receivable, as of any date of determination the sum of the unpaid Scheduled Payments thereon; provided, that in the case of Receivables relating to Obligors and related devices that are eligible for a device upgrade pursuant to the terms of the related Contract, the Receivable Balance shall mean only the amount of the unpaid Scheduled Payments owing by such Obligor prior to the date on which the Contract becomes eligible for an upgrade; provided further, that the Receivable Balance of any Receivable may not exceed the outstanding principal amount, if any, owing by the related Obligor, and provided further, that the Receivable Balance of (i) a Defaulted Receivable or (ii) any Receivable which has been identified as an Ineligible Receivable but not yet reassigned by the Issuer to the Transferor pursuant to Section 2.05 of the Transfer and Servicing Agreement, shall be zero.
Receivable Payments means, with respect to any Receivable, all Collections with respect to such Receivable other than Recoveries.
Receivables Purchase Agreement shall mean that certain Receivables Purchase Agreement, dated as of the Initial Closing Date, by and between the Seller, as seller, and the Transferor, as purchaser, as the same may be amended, supplemented or otherwise modified from time to time.
Receivables Sale Agreement shall have the meaning specified in the recitals of the Receivables Purchase Agreement.
Receivables Schedule shall mean the computer file identifying each Receivable sold on the Initial Addition Date, and each Additional Receivable sold on each Addition Date, by the Seller to the Transferor under the Receivables Purchase Agreement, and immediately thereafter transferred by the Transferor to the Trust pursuant to the Transfer and Servicing Agreement on the Initial Addition Date and on each Addition Date, as applicable, as such file and schedule will be updated and supplemented from time to time, and incorporated by reference into the Receivables Purchase Agreement, the Transfer and Servicing Agreement and the Indenture.
Record Date shall mean, with respect to any Payment Date, the last day of the calendar month immediately preceding such Payment Date unless otherwise specified for a Series in the related Indenture Supplement.
Recoveries shall mean, for any period, Collections on Defaulted Receivables during such period (but not Ineligible Receivables repurchased under Section 2.05 of the Transfer and Servicing Agreement).
Redemption Date shall mean, with respect to any Series, the date or dates specified in the related Indenture Supplement.
Registered Noteholder shall mean the Noteholder of a Registered Note.
Registered Notes shall have the meaning specified in Section 2.1 of the Indenture.
Registrar shall have the meaning specified in Section 2.5 of the Indenture.
Regulation AB shall mean Subpart 229.1100 Asset-Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting releases (including Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005) and Asset-Backed Securities Disclosure and Registration, Securities Act Release No. 33-9638, 79 Fed. Reg. 57,184 (September 24, 2014)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.
Regulation RR means Regulation RR (Credit Risk Retention) promulgated by the Commission to implement the credit risk retention requirements of Section 15G of the Exchange Act.
Related Rights shall mean, with respect to any Receivable, all of the Sellers, the Transferors and the Issuers respective right, title and interest in, to and under:
(a) the related Contract (but not the Sellers or the applicable Originators obligations, if any, under such Contract), all property (other than, in each case, any wireless device or Surrendered Device and any insurance contract related thereto), security interests, hypothecations, reservations of ownership, liens or other adverse claims and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the contract pursuant to which such Receivable was originated, together with all financing statements, registrations, hypothecations, charges or other similar filings or instruments against an Obligor and all security agreements describing any collateral securing such Receivable, if any;
(b) all guarantees, letters of credit, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise;
(c) all Collections with respect to such Receivable;
(d) all rights under the related Contract and related assignment as they relate to such Receivable;
(e) all of the Sellers and the Transferors, as applicable, right, title and interest in, to and under the Receivables Sale Agreement, the Receivables Purchase Agreement and the Transfer and Servicing Agreement, respectively, including, without limitation, all amounts due or to become due to the Seller from the applicable Originator under the Receivables Sale Agreement, or due or to become due to the Transferor from the Seller under the Receivables Purchase Agreement, or due or to become due to the Issuer from the Transferor under the Transfer and Servicing Agreement, as applicable, and all rights, remedies, powers, privileges and claims of (1) the Seller against any Originator under the Receivables Sale Agreement, (2) the Transferor against the Seller under the Receivables Purchase Agreement and (3) the Issuer against the Transferor under the Transfer and Servicing Agreement (in each case, whether arising pursuant to the terms of the Receivables Sale Agreement, the Receivables Purchase Agreement or the Transfer and Servicing Agreement, as applicable, or otherwise available to the Seller, the Transferor or the Issuer at law or in equity); and
(f) all proceeds of the foregoing, including, without limitation, all related amounts on deposit in the Collection Account.
Replacement Receivable means any Receivable transferred by the Transferor to the Trust on an Addition Date pursuant to Section 2.09(a) of the Transfer and Servicing Agreement.
Repurchase Amount shall mean, with respect to any Receivable reassigned or repurchased pursuant to Section 7.01 of the Receivables Purchase Agreement or Section 2.05 of the Transfer and Servicing Agreement, the principal balance of such Receivable as of the close of business on the last day of the immediately preceding Collection Period.
Repurchase Rules and Regulations shall have the meaning specified in Section 6.11 of the Transfer and Servicing Agreement.
Required Deposit Amount shall mean, for each Series of Notes, an amount equal to the lesser of: (a) the amount of Collections allocated to such Series under the terms of the relevant Indenture Supplement, and (b) the sum of (i) all amounts payable to the Noteholders, (ii) fees, indemnities and expenses payable under the Indenture or the related Indenture Supplement, and (iii) deposits required to be made from time to time into the Trust Accounts (other than the Collection Account) pursuant to such Indenture Supplement.
Required Sellers Interest means, as of any date of determination, the product of (i) 5% and (ii) the aggregate of the principal balances of all outstanding Notes other than Risk Retention Retained Notes as of such date of determination.
Requirements of Law means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, whether federal, state or local (including usury laws and the federal Truth in Lending Act).
Requisite Global Majority shall mean Noteholders for each Series holding more than 50% of the outstanding principal of Notes for such Series.
Reserve Account means any reserve account established pursuant to the terms of the Indenture and a related Indenture Supplement.
Responsible Officer shall mean, (i) when used with respect to the Owner Trustee, any officer within the Corporate Trust Office of the Owner Trustee including any director, vice president, assistant vice president, assistant treasurer, assistant secretary, trust officer or any other officer of the Owner Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers or to whom any corporate trust matter is referred at the Corporate Trust Office because of such officers knowledge of and familiarity with the particular subject and in all cases having direct responsibility for the administration of the Trust Agreement, and (ii) when used with respect to the Indenture Trustee, any officer within the Corporate Trust Office of the Indenture Trustee including any vice president, assistant vice president, trust officer or any other officer of the Indenture Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers or to whom any corporate trust matter is referred at the Corporate Trust Office because of such officers knowledge of and familiarity with the particular subject and in all cases having direct responsibility for the administration of this Indenture.
Revolving Period shall have, with respect to each Series, the meaning specified in the related Indenture Supplement.
Risk Retention Retained Note means any Note that is retained by USCC, as sponsor, or a Wholly-owned Affiliate thereof upon initial issuance thereof and at all times thereafter; provided that no Note shall be a Risk Retention Retained Note unless such Note has been designated as a Risk Retention Retained Note pursuant to the related Indenture Supplement.
RR Measurement Date shall have the meaning specified in Section 4.04 of the Transfer and Servicing Agreement.
S&P or Standard & Poors shall mean S&P Global Ratings, acting through Standard & Poors Financial Services LLC, and its successors.
Scheduled Payment on a Receivable shall mean the scheduled periodic payment of principal and, if applicable, interest, required to be made by the Obligor.
Secured Obligations shall have the meaning specified in the Granting Clause of the Indenture.
Securities Act shall mean the Securities Act of 1933, as amended.
Securities Intermediary shall mean, initially, the Indenture Trustee, and thereafter upon any resignation, removal or replacement of the Indenture Trustee, shall mean the successor Indenture Trustee (which successor is required to meet the eligibility standards for the Indenture Trustee specified in Section 6.11 of the Indenture).
Seller shall mean USCC EIP LLC, a Delaware limited liability company, and any successor identified as seller under the Receivables Purchase Agreement.
Sellers Interest means, as of any date of determination, the result of (a) the Aggregate Unadjusted Receivables Balance as of such date of determination, minus (b) the aggregate Outstanding Amount of Notes as of such date of determination.
Series shall mean any series of Notes issued pursuant to the Indenture and the related Indenture Supplement.
Series Account shall mean any deposit, trust, securities escrow or similar account maintained for the benefit of the Noteholders of any Series or Class, as specified in any Indenture Supplement.
Series Amortization Event shall have, with respect to any Series, the meaning specified in the related Indenture Supplement.
Series Discount Percentages shall have, with respect to a Series, the meaning specified in the related Indenture Supplement.
Series Enhancement shall mean the rights and benefits provided to the Issuer or the Noteholders of any Series or Class pursuant to any subordination, collateral interest, insurance policy, cash collateral guaranty or account, interest rate swap agreement, interest rate cap agreement, letter of credit, surety bond, spread account, reserve account, guaranteed rate agreement, interest rate floor agreement, maturity liquidity facility, tax protection agreement, cross currency swap agreement or other derivative agreement or other similar arrangement. Series Enhancement will also refer to any agreements, instruments or documents governing the terms of the enhancements mentioned in the previous sentence or under which they are issued, where the context makes sense. The subordination of any Series or Class to another Series or Class shall be deemed to be a Series Enhancement.
Series Enhancer shall mean the Person or Persons providing any Series Enhancement, other than (except to the extent otherwise provided with respect to any Series in the Indenture Supplement for such Series) the Noteholders of any Series or Class which is subordinated to another Series or Class.
Series Event of Default shall have, with respect to any Series, the meaning specified in the related Indenture Supplement.
Series Issuance Date shall mean, with respect to any Series, the date on which the Notes of such Series are to be originally issued in accordance with Section 2.12 of the Indenture and the related Indenture Supplement.
Servicer shall mean USCC Services, in its capacity as Servicer pursuant to the Transfer and Servicing Agreement, and, following any transfer of servicing activities pursuant to the Transfer and Servicing Agreement, the Successor Servicer (which may be the Back-Up Servicer, if any).
Servicer Default shall have the meaning specified in Section 7.01 of the Transfer and Servicing Agreement.
Servicer Trust Receipt shall have the meaning specified in Section 8.05 of the Transfer and Servicing Agreement.
Servicing Fee shall have the meaning specified in Section 3.02 of the Transfer and Servicing Agreement.
Servicing Fee Rate shall be the rate set forth in the applicable Indenture Supplement.
Servicing Officer means any officer of the Servicer involved in, or responsible for, the administration and servicing of Receivables.
Servicing Transfer shall have the meaning specified in Section 7.01 of the Transfer and Servicing Agreement.
Shared Collections means with respect to a Series, shall have the meaning set forth in the relevant Indenture Supplement.
Sharing Series shall mean a Series that, pursuant to the Indenture Supplement therefor, is entitled to receive certain excess Shared Collections, as more specifically set forth in such Indenture Supplement.
Stated Maturity Date shall mean, with respect to any Series, the final maturity date for such Series specified in the related Indenture Supplement.
Subsidiary means, as to any Person, any other Person that is controlled, directly or indirectly by such Person; and for purposes of this definition, the term control means: (a) the direct or indirect ownership of a majority of the Voting Shares of such Person, (b) having the right to appoint a majority of the board of directors or supervisory board or like board or body, or (c) having the power to direct the management and policies of such Person, whether through the ownership of such Voting Shares, by contract or otherwise.
Successor Servicer shall have the meaning specified in Section 7.02(a) of the Transfer and Servicing Agreement.
Surrendered Device shall have the meaning specified in the Receivables Sale Agreement.
Tax Identification Information means properly completed and signed tax certifications (generally with respect to U.S. Federal Income Tax, IRS Form W-9 (or applicable successor form) in the case of a Person that is a United States Person within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 (or applicable successor form) in the case of a Person that is not a United States Person within the meaning of Section 7701(a)(30) of the Code), and, if applicable, any other information sufficient to eliminate the imposition of, or determine the amount of FATCA Withholding Tax.
Tax Opinion shall mean, with respect to any action, an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, (a) such action will not adversely affect the tax characterization as debt of the Notes of any outstanding Series or Class that was characterized as debt at the time of its issuance, (b) in the case of Section 2.12(b)(vii) of the Indenture, the Notes of any new Series will properly be characterized as debt, and (c) such action will not cause the Issuer to be deemed to be an association or publicly traded partnership taxable as a corporation.
TDS shall mean Telephone and Data Systems, Inc., a Delaware corporation.
Termination Notice shall have the meaning specified in Section 7.01 of the Transfer and Servicing Agreement.
Transaction Documents shall mean, with respect to any Series of Notes, the Trust Agreement, the Receivables Sale Agreement, the Receivables Purchase Agreement, the Transfer and Servicing Agreement, the Indenture, the related Indenture Supplement, the Performance Guaranty, the Administration Agreement, any Series Enhancement agreement, the Back-Up Servicing Agreement, if any, any hedging agreement, any note depository agreements, any fee letter, and such other documents and certificates executed and delivered in connection therewith.
Transaction Parties shall have the meaning specified in Section 2.17(b)(ii)(A) of the Indenture.
Transfer and Servicing Agreement shall mean the Transfer and Servicing Agreement, dated as of December 20, 2017, among the Transferor, the Servicer, the Custodian and the Trust, as the same may be amended, supplemented or otherwise modified from time to time.
Transfer Date shall mean with respect to each Payment Date, the Business Day immediately preceding such Payment Date.
Transfer Deposit Amount shall have the meaning specified in Section 2.05(b) of the Transfer and Servicing Agreement.
Transferor shall mean USCC Receivables Funding LLC, a Delaware limited liability company, or its successor under the Transfer and Servicing Agreement.
Transferor Amount shall mean on any date of determination an amount equal to the difference between (a) the Aggregate Unadjusted Receivables Balance at the end of the day immediately prior to such date of determination, and (b) the aggregate Invested Amount of all Series of Notes issued and outstanding on such date of determination.
Transferor Percentage means as to Receivable Payments, Miscellaneous Payments, Loss Amounts and Recoveries, 100% less the sum of the applicable Allocation Percentages for all outstanding Series.
Transferred Assets shall have the meaning specified in Section 2.01 of the Transfer and Servicing Agreement.
Treasury Regulations means regulations, including proposed or temporary regulations, promulgated under the Code from time to time.
Trigger Receivable Balance means, with respect to any Receivable, as of any date of determination the sum of the unpaid Scheduled Payments thereon; provided, that in the case of Receivables relating to Obligors and related devices that are eligible for a device upgrade pursuant to the terms of the related Contract, the Receivable Balance shall mean only the amount of the unpaid Scheduled Payments owing by such Obligor prior to the date on which the Contract becomes eligible for an upgrade; provided further, that the Receivable Balance of any Receivable may not exceed the outstanding principal amount, if any, owing by the related Obligor.
Trust shall mean USCC Master Note Trust, a Delaware statutory trust.
Trust Accounts shall mean the Collection Account, the Excess Funding Account, and any Series Account.
Trust Agreement shall mean the Amended and Restated Trust Agreement relating to the Issuer, dated as of December 20, 2017, between the Transferor and the Owner Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
Trust Amortization Event shall have, with respect to each Series, the meaning specified in Section 5.1 of the Indenture.
Trust Assets shall have the meaning specified in Section 2.01 of the Transfer and Servicing Agreement.
Trust Event of Default shall have the meaning specified in Section 5.2 of the Indenture.
Trust Termination Date shall have the meaning specified in the Trust Agreement.
UCC shall mean the Uniform Commercial Code, as amended from time to time, as in effect in any specified jurisdiction.
Unadjusted Receivable Balance means, with respect to any Receivable, as of any date of determination, the sum of the unpaid Scheduled Payments thereon (including any Scheduled Payments during the period in which the related Obligor is eligible for a device upgrade pursuant to the terms of the related Contract); provided, that the Receivable Balance of any Receivable may not exceed the outstanding principal amount, if any, owing by the related Obligor.
USCC shall mean United States Cellular Corporation, a Delaware corporation.
USCC Services shall mean USCC Services, LLC, a Delaware limited liability company.
Voting Shares means, with respect to any Person, any class or classes of capital stock or other ownership interests pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect directors, managers or trustees of such Person (irrespective of whether or not, at the time, stock of any other class or classes has, or might have, voting power by reason of the happening of any contingency).
Wholly-owned Affiliate has the meaning specified in Rule 2 of Regulation RR.
EXHIBIT A
FORM OF UNDERTAKING LETTER
USCC Master Note Trust
c/o Wilmington Trust, National Association, as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Capital Markets
U.S. Bank National Association,
as Indenture Trustee for USCC Master Note Trust
111 Fillmore Ave
St. Paul, MN 55107
Attention: USCC Master Note Trust/Bondholder Services
Ladies and Gentlemen:
In connection with the purchase of record or beneficial ownership of a Note subject to the provisions of Section 2.17 of the Master Indenture, dated as of December 20, 2017 (the Unregistered Note), of the USCC Master Note Trust, the undersigned purchaser, record owner or beneficial owner hereby acknowledges, represents and warrants that such purchaser, record owner or beneficial owner:
(1) unless specified in the related Indenture Supplement, it is not, and has not acquired the Unregistered Note by, or for the benefit of, (i) an employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA)) that is subject to the provisions of Title I of ERISA, (ii) a plan as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the Code) that is subject to Section 4975 of the Code, (iii) any entity whose underlying assets include plan assets by reason of such employee benefit plans or plans investment in such entity or (iv) any governmental, church, non-U.S. or other plan subject to any federal, state, local or non-U.S. law that is substantially similar to Title I of ERISA or Section 4975 of the Code; and
(2) acknowledges that you and others will rely on the acknowledgments, representations and warranties contained herein, and agrees to notify you promptly in writing if any of the acknowledgments, representations or warranties herein cease to be accurate and complete.
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Name of Note Owner | ||
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By: |
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Name: |
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Title: |
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Date: |
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USCC MASTER NOTE TRUST
Issuer
USCC SERVICES, LLC
Servicer
and
U.S. BANK NATIONAL ASSOCIATION
Indenture Trustee
SERIES 2017-VFN INDENTURE SUPPLEMENT
Dated as of December 20, 2017
TABLE OF CONTENTS
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ARTICLE I |
CREATION OF THE SERIES 2017-VFN NOTES |
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Section 1.1 |
Designation |
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ARTICLE II |
DEFINITIONS |
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Section 2.1 |
Definitions |
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ARTICLE III |
SERVICER |
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Section 3.1 |
Servicing Compensation |
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ARTICLE IV |
RIGHTS OF SERIES 2017-VFN NOTEHOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS |
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Section 4.1 |
Collections and Allocations |
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Section 4.2 |
Application of Available Funds on Deposit in the Series 2017-VFN Series Account |
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Section 4.3 |
Investor Charge-Offs |
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Section 4.4 |
Investor Recoveries |
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Section 4.5 |
Shared Collections |
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Section 4.6 |
Series 2017-VFN Series Account |
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Section 4.7 |
[Reserved] |
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Section 4.8 |
Excess Funding Account |
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Section 4.9 |
Determination of Note Rate |
15 | |||
Section 4.10 |
Investment Instructions |
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Section 4.11 |
Note Principal Balance Increases and Note Principal Balance Reductions |
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Section 4.12 |
Reduction of Facility Limit |
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Section 4.13 |
Hedging |
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Section 4.14 |
Paydown |
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Section 4.15 |
Series Accounts |
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ARTICLE V |
DELIVERY OF SERIES 2017-VFN NOTES; DISTRIBUTIONS; REPORTS TO SERIES 2017-VFN NOTEHOLDERS |
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Section 5.1 |
Delivery and Payment for the Series 2017-VFN Notes |
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Section 5.2 |
Distributions |
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Section 5.3 |
Reports and Statements to Series 2017-VFN Noteholders |
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ARTICLE VI |
SERIES AMORTIZATION EVENTS |
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Section 6.1 |
Series Amortization Events |
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ARTICLE VII |
SERIES 2017-VFN EVENTS OF DEFAULT |
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Section 7.1 |
Series 2017-VFN Events of Default |
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ARTICLE VIII |
REDEMPTION OF SERIES 2017-VFN NOTES; FINAL DISTRIBUTIONS |
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TABLE OF CONTENTS
(continued)
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Section 8.1 |
Optional Redemption of Series 2017-VFN Notes |
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Section 8.2 |
Payment in Redemption of the Series 2017-VFN Notes |
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ARTICLE IX |
MISCELLANEOUS PROVISIONS |
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Section 9.1 |
Ratification of Indenture |
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Section 9.2 |
Counterparts |
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Section 9.3 |
GOVERNING LAW |
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Section 9.4 |
Transfer Restrictions |
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Section 9.5 |
Certain Commercial Law Representations and Warranties |
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Section 9.6 |
Limitation on Owner Trustee Liability |
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EXHIBITS |
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EXHIBIT A |
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FORM OF SERIES 2017VFN FLOATING RATE ASSET BACKED NOTE |
EXHIBIT B |
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FORM OF MONTHLY SERVICING STATEMENT |
EXHIBIT C |
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FORM OF SERVICERS CERTIFICATE |
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ANNEX |
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ANNEX A |
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AGGREGATE ADVANCE AMOUNT CALCULATIONS |
SERIES 2017-VFN INDENTURE SUPPLEMENT, dated as of December 20, 2017 (the Indenture Supplement), among USCC MASTER NOTE TRUST, a statutory trust existing under the laws of the State of Delaware (herein, the Issuer or the Trust), USCC SERVICES, LLC, a Delaware limited liability company, as servicer (the Servicer), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, not in its individual capacity, but solely as the Indenture Trustee (herein, together with its successors and assigns in such capacity, the Indenture Trustee) under the Master Indenture, dated as of December 20, 2017 (the Indenture), among the Issuer, the Servicer and the Indenture Trustee (the Indenture, together with this Indenture Supplement, the Agreement).
The Issuer from time to time may issue one or more Series of Notes in accordance with Section 2.12 of the Indenture. The Issuer has tendered the notice of issuance required by Section 2.12(b)(i) of the Indenture, and the Issuer has directed the Indenture Trustee to enter into this Indenture Supplement as required by Section 10.3 of the Indenture to provide for the issuance, authentication and delivery of the Notes, Series 2017-VFN and to specify the Principal Terms thereof. The Principal Terms of this Series are set forth in this Indenture Supplement to the Indenture.
In addition to the grant of the Indenture, the Issuer hereby grants to the Indenture Trustee, for the exclusive benefit of the Series 2017-VFN Noteholders, all of the Issuers right, title and interest (whether now owned or hereafter acquired) in, to and under the following (collectively, the Series Collateral):
(i) all Collections allocated by the Servicer to the Series 2017-VFN Notes, including Receivable Payments, Miscellaneous Payments, Recoveries and Shared Collections allocated to Series 2017-VFN;
(ii) all Eligible Investments and all monies, instruments, securities, security entitlements, documents, certificates of deposit and other property from time to time on deposit in or credited to the Series Accounts for Series 2017-VFN (as described in Section 4.15) (including any subaccount thereof) and in all interest, proceeds, earnings, income, revenue, dividends and other distributions thereof (including any accrued discount realized on liquidation of any investment purchased at a discount); and
(iii) all present and future claims, demands, causes of action and choses in action regarding any of the foregoing and all payments on any of the foregoing and all proceeds of any nature whatsoever regarding any of the foregoing, including all proceeds of the voluntary or involuntary conversion thereof into cash or other liquid property and all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any kind and other forms of obligations and receivables, instruments and other property that at any time constitute any part of or are included in the proceeds of any of the foregoing.
The foregoing grants are made in trust to secure (a) the Issuers obligations with respect to the Series 2017-VFN Notes equally and ratably without prejudice, priority or distinction among the Series 2017-VFN Notes, other than as expressly provided in this Indenture
Supplement, (b) the payment of all other sums payable to the Series 2017-VFN Noteholders under the Series 2017-VFN Notes, the Indenture and this Indenture Supplement and (c) the compliance with the terms and conditions of the Series 2017-VFN Notes, the Indenture and this Indenture Supplement, all as provided herein or therein.
The Indenture Trustee, as indenture trustee on behalf of the Series 2017-VFN Noteholders, hereby acknowledges the foregoing grants, accepts the trusts under this Indenture Supplement in accordance with the provisions of this Indenture Supplement, and agrees to perform the duties herein required to the end that the interests of the Series 2017-VFN Noteholders may be adequately protected.
ARTICLE I
CREATION OF THE SERIES 2017-VFN NOTES
Section 1.1 Designation.
(a) There is hereby created a Series of Notes to be issued pursuant to the Indenture and this Indenture Supplement to be known as USCC Master Note Trust, Series 2017-VFN or the Series 2017-VFN Notes. The Series 2017-VFN Notes shall be issued in one Class, known as the Series 2017-VFN Floating Rate Asset Backed Notes. The Series 2017-VFN Notes shall be due and payable on the Series 2017-VFN Stated Maturity Date.
(b) Series 2017-VFN shall be included in Group I and shall be a Sharing Series. Series 2017-VFN shall not be subordinated to any other Series. Notwithstanding any provision in the Indenture or in this Indenture Supplement to the contrary, the first Payment Date with respect to Series 2017-VFN shall be the January 2018 Payment Date, and the first Collection Period shall begin on and include December 20, 2017 and end on and include December 31, 2017.
ARTICLE II
DEFINITIONS
Section 2.1 Definitions.
(a) Whenever used in this Indenture Supplement, the following words and phrases shall have the following meanings, and the definitions of such terms are applicable to the singular as well as the plural forms of such terms and the masculine as well as the feminine and neuter genders of such terms.
(b) Each capitalized term defined herein shall relate to the Series 2017-VFN Notes and no other Series of Notes issued by the Issuer, unless the context otherwise requires. All capitalized terms used herein and not otherwise defined herein have the meanings ascribed to them in Annex A of the Indenture and the Note Purchase Agreement. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision
contained in the Indenture or the Note Purchase Agreement, the terms and provisions of this Indenture Supplement shall govern.
Additional Amounts shall have the meaning set forth in Section 4.2(d).
Administrative Agent shall have the meaning specified in the Note Purchase Agreement.
Administrative Agent Fee Letter shall have the meaning specified in the Note Purchase Agreement.
Advance Rate shall mean a percentage calculated on any date of determination in the manner provided for in Annex A hereto, with respect to the Receivables which constitute Trust Assets as of such date of determination.
Aggregate Partial Paydown Amount shall mean, for any Partial Paydown Period, the aggregate amount necessary to pay in full the outstanding principal amount of the Series 2017-VFN Notes held by each Non-Renewing Ownership Group.
Amortization Period shall mean the earlier of the period commencing on the first day of the Collection Period (a) following the Scheduled Commitment Termination Date or (b) in which an Amortization Event with respect to Series 2017-VFN has occurred, and ending upon the earlier to occur of (i) the payment in full of the Note Principal Balance to the Series 2017-VFN Noteholders and (ii) the Series 2017-VFN Stated Maturity Date.
Asset Base shall mean, as of any date of determination, an amount equal to the sum of (a) the product of (i) the Asset Base Allocation Percentage for Series 2017-VFN in effect on such date of determination, (ii) the Advance Rate in effect on such date of determination and (iii) the Aggregate Receivables Balance (measured as of such date of determination), plus (b) amounts on deposit in the Series 2017-VFN Series Account which are available for payment of principal on the Series 2017-VFN Notes on the following Payment Date on such date (after taking into account payments with senior priority), plus (c) an amount equal to the product of (x) the Asset Base Allocation Percentage for Series 2017-VFN in effect on such date of determination and (y) the amount of cash and Eligible Investments on deposit in the Excess Funding Account on such date of determination.
Asset Base Allocation Percentage shall mean, at any date of determination, the percentage equivalent (which percentage shall never exceed 100%) of a fraction, (a) the numerator of which is the Invested Amount and (b) the denominator of which is the Adjusted Pool Principal Balance, each as of such date of determination.
Asset Base Deficiency shall mean, as of any date of determination, the condition that exists if (a) the Note Principal Balance exceeds (b) the Asset Base. If such term is used in a quantitative context, the amount of the Asset Base Deficiency shall be equal to the amount of such excess.
Available Funds shall mean, with respect to any Payment Date for Series 2017-VFN, an amount equal to the sum of (a) the amount of funds on deposit in the Collection Account allocated pursuant to Section 4.1, which relate to Series 2017-VFN, which have been deposited by the Servicer pursuant to Section 4.02 of the Transfer and Servicing Agreement or have otherwise been deposited in the Series 2017-VFN Series Account for payment with respect to Series 2017-VFN (including payments received under any Hedging Agreement), (b) any Shared Collections with respect to other Series that are allocated to Series 2017-VFN and deposited into the Series 2017-VFN Series Account in accordance with Section 8.4(d) of the Indenture and Section 4.5, and (c) any Hedge Receipts deposited into the Series 2017-VFN Series Account.
Change of Control shall mean the occurrence of any of the following:
(a) the Transferor shall fail to own 100% of the equity of the Issuer;
(b) USCC or an affiliate shall fail to own 100% of the equity of the Transferor; or
(c) with respect to USCC, any event or series of related events (including (x) the sale or issuance (or series of sales or issuances) of equity interests of USCC by USCC or by any holder or holders thereof, or (y) any merger, consolidation, recapitalization, reorganization or other transaction or arrangement) as a result of which any of the following occur:
(i) the Carlson Family Group (as defined below) shall together cease to be beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of voting interests in USCC having the voting power, by class or through a combined total voting power of all classes of equity interests of USCC, to elect at least a majority of the members of the board of directors of USCC, or
(ii) Telephone and Data Systems, Inc. shall not control more than 50.1% of the voting interests in USCC; or
(iii) Telephone and Data Systems, Inc.s financial statements determined on a consolidated basis in accordance with GAAP are not required to include the results of USCC.
As used in clause (c)(i) above, Carlson Family Group means any and all of the following persons: (a) LeRoy T. Carlson or his spouse, Margaret Carlson; (b) any child, grandchild, great grandchild or other lineal descendant of LeRoy T. Carlson and Margaret Carlson, including any Person with such relationship by adoption, or the spouse of any such Person; (c) the estate of any of the Persons described in subsections (a) and (b); (d) any trust or similar arrangement, provided that Persons described in subsections (a), (b), or (c) are the beneficiaries of more than fifty percent (50%) of the beneficial interests in such trust or arrangement; (e) the voting trust which expires on June 30, 2035, as amended from time to time, or any successor to such voting trust, including the trustees of such voting trust; and (f) any corporation, partnership, limited liability company or
other entity in which Persons identified in subsections (a) through (e) own more than fifty percent (50%) of the voting interests in the election of directors or other management of such entity.
For the avoidance of doubt, the Indenture Trustee shall have no duty or obligation to monitor or determine whether a Change of Control has occurred.
Closing Date with respect to Series 2017-VFN shall mean December 20, 2017.
Collections Shortfall shall, on any Payment Date, be equal to the excess, if any, of (a) the full amount required to be paid, without duplication, pursuant to Sections 4.2(a) through 4.2(i) on such Payment Date (excluding any portion thereof attributable to Shared Collections), over (b) the amount of Available Funds available to pay such amounts on such Payment Date.
Consolidated Interest Coverage Ratio with respect to USCC, shall have the meaning specified in the USCC Credit Agreement.
Consolidated Leverage Ratio with respect to USCC, shall have the meaning specified in the USCC Credit Agreement.
Debt of any Person shall mean, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (iii) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (iv) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within twelve months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (v) all obligations of such Person under take-or-pay or similar arrangements or under commodities agreements, (vi) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; provided that for purposes hereof the amount of such indebtedness shall be limited to the greater of (A) the amount of such indebtedness as to which there is recourse to such Person and (B) the fair market value of the property which is subject to the Lien, (vii) all guarantees of such Person, (viii) the principal portion of all obligations of such Person under capitalized leases, (ix) all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements, commodity purchase or option agreements or other interest or exchange rate or commodity price hedging agreements, (x) the maximum amount of all standby letters of credit issued or bankers acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (xi) all preferred stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due by a fixed date, and (xii) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product to which such Person is a party, where such transaction is considered borrowed money indebtedness for tax purposes. The Debt of any Person shall include the indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, but only to the extent to which there is recourse to such Person for payment of such indebtedness.
Excess Funding Account shall mean the Excess Funding Account established pursuant to Section 4.01(b) of the Transfer and Servicing Agreement.
Facility Limit shall have the meaning set forth in the Note Purchase Agreement.
Fee Letter shall have the meaning set forth in the Note Purchase Agreement.
Force Majeure Event shall mean any event or condition beyond the reasonable control of any party hereto, including but not limited to acts of God, wars and insurrections, which event or condition causes any delay or default by such party in performing hereunder.
Group I shall mean a group of Series, and which will include Series 2017-VFN and each other Series specified in the related Indenture Supplement to be included in Group I.
Hedge Provider shall mean any entity which has entered into a Hedging Agreement with the Issuer.
Hedge Receipts means all amounts due and payable by a Hedge Provider to the Issuer under a Hedging Agreement.
Hedging Agreement shall mean, the Interest Rate Cap Agreement and any other swap, cap, collar, floor or other hedging agreement in respect of interest rates entered into with respect to the Series 2017-VFN Notes.
Hedging Requirements shall mean the requirements described in Exhibit G to the Note Purchase Agreement.
Indenture Trustee Series Fee shall mean with respect to Series 2017-VFN, $18,000 per annum, payable in monthly installments on each Payment Date as a component of the Indenture Trustee Fees payable pursuant to Section 4.2(a)(i).
Initial Note Principal Balance shall mean $0.
Interest Period shall mean, with respect to each Payment Date and the related Determination Date, the calendar month immediately preceding the month in which such Payment Date occurs.
Interest Rate Cap Agreement shall mean the Interest Rate Cap Agreement dated as of December 19, 2017 (and effective as of December 20, 2017) between the Issuer and Royal Bank of Canada.
Invested Amount shall mean, (a) as of any date of determination during the Revolving Period, an amount equal to the Note Principal Balance of the Series 2017-VFN Notes divided by the Advance Rate and (b) as of any date of determination during the Amortization Period (i) the Invested Amount as of the close of business on the last day of the Revolving Period minus (ii)(A) the aggregate amount of principal previously paid during the Amortization Period to the Series 2017-VFN Noteholders with respect to the Notes and (B) the aggregate amount of Investor Charge-Offs during the Amortization Period plus (iii) the aggregate amount of Investor Recoveries Collections during the Amortization Period.
Investor Charge-Off shall have the meaning specified in Section 4.3.
Investor Loss Amount shall mean, with respect to any Payment Date, (a) during the Revolving Period, zero, and (b) during the Amortization Period, an amount equal to the product of (i) the Investor Percentage for such Collection Period and (ii) the Loss Amount for the related Collection Period.
Investor Percentage shall mean, for any Collection Period, (a) with respect to (i) Receivable Payments during the Revolving Period, (ii) Miscellaneous Payments during the Revolving Period, (iii) Loss Amounts during the Amortization Period, and (iv) Recoveries during the Amortization Period, the Floating Allocation Percentage and (b) with respect to (i) Receivable Payments during the Amortization Period and (ii) Miscellaneous Payments during the Amortization Period, the Fixed Allocation Percentage.
Investor Recoveries Collections shall mean, with respect to any Payment Date, an amount equal to the product of (a) the Investor Percentage for the related Collection Period and (b) Collections of Recoveries for the related Collection Period.
Managing Agents shall have the meaning set forth in the Note Purchase Agreement.
Monthly Additional Interest shall have the meaning set forth in the Note Purchase Agreement.
Monthly Interest shall have the meaning set forth in the Note Purchase Agreement.
Monthly Report shall have the meaning set forth in the Transfer and Servicing Agreement.
Monthly Servicing Fee shall mean, for any Payment Date relating to Series 2017-VFN, an amount equal to one-twelfth of the product of:
(a) the Servicing Fee Rate;
(b) the Floating Allocation Percentage for the related Collection Period; and
(c) the Aggregate Unadjusted Receivables Balance as of the close of business on the last day of the immediately preceding Collection Period.
Non-Renewing Ownership Group shall have the meaning set forth in the Note Purchase Agreement.
Note Principal Balance shall mean, with respect to any date, an amount equal to (a) the Initial Note Principal Balance, minus (b) the aggregate amount of any principal payments made to the Series 2017-VFN Noteholders prior to such date, plus (c) the aggregate amount of Note Principal Balance Increases made with respect to the Notes since the Closing Date; provided, that if the Invested Amount is less than such amount, the Note Principal Balance shall equal the Invested Amount; provided further that the Note Principal Balance shall not be more than the Facility Limit.
Note Principal Balance Increase shall have the meaning set forth in the Note Purchase Agreement.
Note Principal Balance Reduction shall have the meaning set forth in the Note Purchase Agreement.
Note Purchase Agreement shall mean the Series 2017-VFN Note Purchase Agreement dated December 20, 2017 among the Transferor, the Issuer, USCC Services, individually and as Servicer, USCC, as performance guarantor, the Owners party thereto, the Managing Agents party thereto and Royal Bank of Canada, as administrative agent.
Note Rate shall have the meaning set forth in the Note Purchase Agreement.
Owners shall have the meaning set forth in the Note Purchase Agreement.
Partial Paydown Period shall mean, if there shall be any Non-Renewing Ownership Groups with respect to the extension of any Scheduled Commitment Termination Date, the period beginning on the Scheduled Commitment Termination Date without giving effect to such extension and ending on the date all amounts owing to such Non-Renewing Ownership Groups with respect to the Series 2017-VFN Notes, the Note Purchase Agreement, the Administrative Agent Fee Letter, the Fee Letters and the other Transaction Documents have been paid in full.
Payment Date shall mean the fifteenth (15th) day of each calendar month thereafter, or if such day is not a Business Day, the next succeeding Business Day, commencing January 16, 2018.
PBGC shall mean the U.S. Pension Benefit Guaranty Corporation.
Permitted Transferee shall have the meaning set forth in the Note Purchase Agreement.
Program Fee Rate shall have the meaning set forth in the Note Purchase Agreement
Rating Agency means S&P, Moodys, Fitch, DBRS, or such other nationally recognized statistical rating organization as may rate the long-term unsecured debt of USCC or Telephone and Data Systems, Inc. from time to time.
Redemption Amount shall mean, with respect to any Payment Date, after giving effect to any deposits and distributions otherwise to be made on such Payment Date, the sum of (a) the Note Principal Balance, plus (b) Monthly Interest for such Payment Date and any Monthly Interest previously due but not distributed to the Series 2017-VFN Noteholders, plus (c) Additional Amounts, plus (d) any other amounts due and owing by the Issuer pursuant to the terms of this Indenture Supplement, the Note Purchase Agreement, the Administrative Agent Fee Letter, the Fee Letters or any other Transaction Document (including all fees, expenses and indemnities set forth therein).
Required Hedge Rate shall mean, initially, the sum of (i) the strike rate on the Interest Rate Cap Agreement (2.05%) plus (ii) 5.00%, and thereafter, to the extent the Issuer enters into more than one interest rate cap with respect to Series 2017-VFN, the highest weighted average strike rate of such interest rate caps (by reference to the notional amounts shown on the hedge notional schedules under all such interest rate caps in effect at such time). If at any time any interest rate cap no longer meets the Hedging Requirements, the Required Hedge Rate will be determined inclusive of such interest rate cap agreements strike rate until such time as such interest rate cap is replaced in accordance with the Hedging Requirements.
Revolving Period shall mean the period beginning on the Closing Date for Series 2017-VFN and ending on the close of business on the day immediately preceding the day the Amortization Period commences.
Scheduled Commitment Termination Date shall mean December 13, 2019.
Series 2017-VFN shall mean the Series of Notes for which the terms are specified in this Indenture Supplement.
Series 2017-VFN Default Ratio shall have the meaning given to such term in Annex A.
Series 2017-VFN Delinquency Ratio shall have the meaning given to such term in Annex A.
Series 2017-VFN Dilution Ratio shall have the meaning given to such term in Annex A.
Series 2017-VFN Discount Percentage shall mean 9.10% (representing a percentage equal to the sum of (i) the Servicing Fee Rate for Series 2017-VFN, (ii) the Program Fee Rate, (iii) the Required Hedge Rate, and (iv) 0.50%, as such amount may change from time to time).
Series 2017-VFN Early Amortization Event shall have the meaning specified in Section 6.1.
Series 2017-VFN Event of Default shall have the meaning specified in Section 7.1.
Series 2017-VFN Series Account shall have the meaning specified in Section 4.6.
Series 2017-VFN Noteholder shall mean the Person in whose name a Series 2017-VFN Note is registered in the Note Register.
Series 2017-VFN Notes shall mean any one of the Notes for Series 2017-VFN executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form of Exhibit A.
Series 2017-VFN Shared Collections shall have the meaning specified in Section 4.5.
Series 2017-VFN Stated Maturity Date shall mean the earliest to occur of (a) the Payment Date occurring 42 months following the commencement of the Amortization Period, (b) the Payment Date on which the Series 2017-VFN Notes are paid in full, and (c) the termination of the Trust pursuant to Section 11.1 of the Indenture.
Series Event of Default shall have the meaning specified in Section 7.1.
Servicing Fee Rate with respect to Series 2017-VFN shall mean 0.50% per annum; provided, that in connection with the transfer of servicing activities under the Transaction Documents to a Successor Servicer (which may be a Back-Up Servicer, if applicable) pursuant to Section 7.02 of the Transfer and Servicing Agreement, the Servicing Fee Rate for Series 2017-VFN shall be the percentage or rate agreed upon by the Indenture Trustee (acting at the direction of 100% of the Series 2017-VFN Noteholders) and the Back-Up Servicer.
Shared Collections shall have the meaning set forth in Section 4.2(j).
Supplemental Principal Payment Amount shall mean, the greater of (a) the Asset Base Deficiency, and (b) any outstanding Note Principal Balance Reduction.
Target Deposit Amount shall mean, for each Interest Period, an amount equal to the sum of (a) the product of (i) 105% and (ii) the distributions anticipated by the Servicer to be required under Sections 4.2(a) through (e) on the following Payment Date, and (b) the difference between (i) the three-month average of the aggregate amount of distributions made pursuant to Section 4.2 on the three (3) immediately preceding Payment Dates and (ii) the amount determined pursuant to clause (a) above; provided, that in connection with the first three Interest Periods immediately following the Initial Closing Date, the Target Deposit Amount shall be equal to $80,000.00 for each such Interest Period.
USCC Credit Agreement shall mean that that certain Credit Agreement, dated as of June 15, 2016, among USCC, Toronto Dominion (Texas) LLC as the administrative agent
and the lenders party thereto from time to time, as amended, restated and extended from time to time in accordance with the terms thereof.
VFN Non-Use Fee shall have the meaning set forth in the applicable Fee Letter.
The words hereof, herein and hereunder and words of similar import when used in this Indenture Supplement shall refer to this Indenture Supplement as a whole and not to any particular provision of this Indenture Supplement; references to any Article, subsection, Section or Exhibit are references to Articles, subsections, Sections and Exhibits in or to this Indenture Supplement unless otherwise specified; and the term including means including without limitation.
ARTICLE III
SERVICER
Section 3.1 Servicing Compensation. The share of the Servicing Fee allocable to the Series 2017-VFN Noteholders with respect to any Payment Date shall equal the Monthly Servicing Fee for the related Collection Period. The portion of the Servicing Fee that is not allocable to the Series 2017-VFN Noteholders shall be paid by the holders of the Equity Certificates or the noteholders of other Series (as provided in the related Indenture Supplements), and in no event shall the Trust, the Indenture Trustee or the Series 2017-VFN Noteholders be liable for the share of the Servicing Fee to be paid by the holders of the Equity Certificates or the noteholders of any other Series.
ARTICLE IV
RIGHTS OF SERIES 2017-VFN NOTEHOLDERS
AND ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.1 Collections and Allocations.
(a) Collections of Receivable Payments, Miscellaneous Payments, Recoveries and Shared Collections reallocated from other Series in Group I shall be allocated and distributed as set forth in Article VIII of the Indenture and this Article IV.
(b) Notwithstanding the provisions of Section 4.02 of the Transfer and Servicing Agreement, during each Interest Period, as promptly as possible, but in no event later than two (2) Business Days following the Date of Processing, the Servicer shall deposit an amount equal to the Floating Allocation Percentage of Collections and Miscellaneous Payments during the Revolving Period or the Fixed Allocation Percentage of Collections and Miscellaneous Payments during the Amortization Period, as applicable, into the Series 2017-VFN Series Account until such time in such Interest Period as the Series 2017-VFN Series Account has an amount on deposit equal to the Target Deposit Amount.
(c) To the extent not otherwise deposited into the Series 2017-VFN Series Account, the Servicer shall deposit all Hedge Receipts and Shared Collections payable to
Series 2017-VFN in the Series 2017-VFN Series Account on the day of receipt (or the next Business Day if such day is not a Business Day) or on the Business Day prior to the Payment Date, as applicable.
(d) The Servicer shall, prior to the close of business on any Determination Date, calculate the amount of each distribution to be made pursuant to Section 4.2 below, and allocate to the Series 2017-VFN Noteholders the amount determined as provided in Section 8.4 of the Indenture and, no later than the Business Day prior to the Payment Date, transfer or cause to be transferred such amounts from the Collection Account to the Series 2017-VFN Series Account (other than amounts constituting the Target Deposit Amount that were previously deposited into the Series 2017-VFN Series Account during such period pursuant to Section 4.1(b)).
Section 4.2 Application of Available Funds on Deposit in the Series 2017-VFN Series Account.
The Servicer shall apply, or shall cause the Indenture Trustee to apply by written instruction to the Indenture Trustee, not later than 12:00 p.m. (New York City time) on each Payment Date, Available Funds on deposit in the Series 2017-VFN Series Account, or retained by the Servicer, for application hereunder, each with respect to such Payment Date, to make the following distributions in the following priority:
(a) To the Indenture Trustee and the Owner Trustee, pari passu:
(i) to the Indenture Trustee, an amount equal to the product of (x) the Floating Allocation Percentage and (y) the sum of (A) accrued and unpaid Indenture Trustee Fees and expenses and (B) indemnity payments payable to the Indenture Trustee up to $500,000 per annum (provided that such cap shall not apply following the occurrence and continuance of an Event of Default); and
(ii) to the Owner Trustee, an amount equal to the product of (x) the Floating Allocation Percentage and (y) the sum of (A) accrued and unpaid Owner Trustee Fees and (B) indemnity payments payable to the Owner Trustee up to $100,000 per annum;
(b) To the Servicer, an amount equal to the unpaid Monthly Servicing Fee;
(c) To each Series 2017-VFN Noteholder, pro rata, Monthly Interest due and payable on the Notes at the Note Rate, and any Monthly Additional Interest previously due but not distributed;
(d) To each Series 2017-VFN Noteholder, such Series 2017-VFN Noteholders pro rata share of the VFN Non-Use Fee and any increased costs, taxes and indemnity payments, in each case due and payable as provided in the Note Purchase Agreement and the Fee Letter and any arrearages thereof (such amounts, the Additional Amounts);
(e) To each Series 2017-VFN Noteholder, such Series 2017-VFN Noteholders pro rata portion of the Supplemental Principal Payment Amount, if any;
(f) During the Amortization Period, to each Series 2017-VFN Noteholder, pro rata, such Series 2017-VFN Noteholders portion of the Series 2017-VFN Note Principal Balance until all Series 2017-VFN Notes have been paid in full;
(g) On any Payment Date following the occurrence of an Amortization Event or Event of Default, to each Series 2017-VFN Noteholder, pro rata, Monthly Interest in excess of interest at the Note Rate;
(h) [Reserved];
(i) To the Indenture Trustee and the Owner Trustee, any remaining fees, expenses or other indemnified amounts then due and payable, after giving effect to the payment made pursuant to clause (a) above and without regard to the cap set forth therein;
(j) To the Series Accounts of each other Sharing Series in Group I that have a Collections Shortfall on such Payment Date, pro rata, based on the Collections Shortfall for each such Series, for application in accordance with the respective Indenture Supplements of each such Series (such aggregate distribution, Shared Collections);
(k) To the Excess Funding Account, (i) any amounts necessary to prevent (A) the occurrence of an Asset Base Deficiency or (B) the Transferor Amount from being less than the Minimum Transferor Amount and (ii) any amounts designated by the Transferor (for retention therein); and
(l) All remaining amounts to the Transferor, as holder of the Equity Certificate.
Section 4.3 Investor Charge-Offs. On each Determination Date during the Amortization Period, the Servicer shall calculate the Investor Loss Amount, if any, for the related Payment Date. The Invested Amount will be reduced by such amount (such reduction, an Investor Charge-Off). No allocations of Loss Amounts will be made to Series 2017-VFN during the Revolving Period.
Section 4.4 Investor Recoveries. On each Determination Date during the Amortization Period, the Servicer shall calculate Investor Recoveries Collections, if any, for the related Payment Date. The Invested Amount will be increased by such amount. No allocations or payments of Recoveries will be made Series 2017-VFN during the Revolving Period.
Section 4.5 Shared Collections. Series 2017-VFN shall be a Sharing Series. Shared Collections with respect to all the Sharing Series in Group I for any Payment Date will be allocated to Series 2017-VFN (the Series 2017-VFN Shared Collections) in an amount equal to the product of (x) the aggregate amount of Shared Collections with respect to all the Sharing Series in Group I for such Payment Date and (y) a fraction, the numerator of which is the Collections Shortfall for Series 2017-VFN for such Payment Date and the denominator of which
is the aggregate amount of Collections Shortfalls for all the Sharing Series in Group I for such Payment Date. On each Payment Date, the Servicer shall determine the amount of the Collections Shortfall for Series 2017-VFN for the related Payment Date, and shall direct the paying agent to withdraw an amount equal to the Series 2017-VFN Shared Collections from the Collection Account and/or the Series Accounts for the other Sharing Series in Group I, and deposit such amount into the Series 2017-VFN Series Account for distribution pursuant to Section 4.2 on the related Payment Date.
Section 4.6 Series 2017-VFN Series Account.
(a) The Servicer shall establish and maintain with an Eligible Institution, which may be the Paying Agent, in the name of the Paying Agent on behalf of the Indenture Trustee for the benefit of the Series 2017-VFN Noteholders, a segregated account with the corporate trust department of such Eligible Institution (the Series 2017-VFN Series Account), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2017-VFN Noteholders. The Indenture Trustee, for the benefit of the Series 2017-VFN Noteholders, shall possess all right, title and interest in all funds on deposit from time to time in the Series 2017-VFN Series Account and in all proceeds thereof. The Series 2017-VFN Series Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Series 2017-VFN Noteholders. If at any time the institution holding the Series 2017-VFN Series Account ceases to be an Eligible Institution, the Transferor shall notify the Indenture Trustee, and the Indenture Trustee upon being notified (or the Servicer on its behalf) shall, within ten (10) Business Days, establish a new Series 2017-VFN Series Account meeting the conditions specified above with an Eligible Institution.
(b) Funds on deposit in the Series 2017-VFN Series Account shall be invested at the written direction of the Servicer by the Paying Agent in Eligible Investments. Funds on deposit in the Series 2017-VFN Series Account on any Payment Date, after giving effect to any withdrawals from the Series 2017-VFN Series Account on such Payment Date, shall be invested in such investments that mature on or prior to the Business Day immediately preceding the following Payment Date.
(c) On each Payment Date, any earnings (net of losses and investment expenses) accrued and received since the preceding Payment Date on funds on deposit in the Series 2017-VFN Series Account shall be retained in the Series 2017-VFN Series Account and shall be Available Funds for such Payment Date. For purposes of determining the availability of funds or the balance in the Series 2017-VFN Series Account for any reason under this Indenture Supplement, except as otherwise provided in the preceding sentence, investment earnings on such funds shall be deemed not to be available or on deposit.
Section 4.7 [Reserved].
Section 4.8 Excess Funding Account.
(a) Series 2017-VFN shall be entitled to its Asset Base Allocation Percentage of amounts on deposit in the Excess Funding Account.
(b) The Transferor may, from time to time, direct the Indenture Trustee to make deposits of any amounts payable to the Transferor under the Indenture to the Excess Funding Account. Such direction and the amounts of such deposits shall be entirely at the direction of the Transferor. Thereafter, the Indenture Trustee, at the direction of the Transferor, shall make withdrawals from the Excess Funding Account to either, as directed by the Transferor, (a) pay such amounts directly to the Transferor or (b) deposit the amount of any such withdrawals in the Series 2017-VFN Series Account for application as Available Funds on the following Payment Date; provided that, after the occurrence of an Amortization Event or an Event of Default, the Indenture Trustee shall transfer, without regard to the Transferors instructions, all amounts on deposit in the Excess Funding Account pursuant to Section 4.03(d) of the Transfer and Servicing Agreement.
(c) Funds on deposit in the Excess Funding Account shall be invested at the written direction of the Servicer by the Indenture Trustee in Eligible Investments. Funds on deposit in the Excess Funding Account on any Payment Date, after giving effect to any withdrawals from the Excess Funding Account on such Payment Date, shall be invested in such investments that will mature on or prior to the Business Day immediately preceding the following Payment Date.
(d) On each Payment Date, any earnings (net of losses and investment expenses) accrued since the preceding Payment Date on funds on deposit in the Excess Funding Account shall be retained in the Excess Funding Account.
Section 4.9 Determination of Note Rate. The Note Rate shall be determined by each Managing Agent and provided to the Servicer, the Indenture Trustee, the Issuer and the Administrative Agent, in accordance with the terms of Section 2.3(g) of the Note Purchase Agreement.
Section 4.10 Investment Instructions. Any investment instructions required to be given to the Indenture Trustee pursuant to the terms hereof must be given to a Responsible Officer of the Indenture Trustee no later than 12:00 p.m. (New York City time) on the date such investment is to be made. In the event the Indenture Trustee receives such investment instruction later than such time, the Indenture Trustee may, but shall have no obligation to, make such investment. In the event the Indenture Trustee is unable to make an investment required in an investment instruction received by the Indenture Trustee after 12:00 p.m. (New York City time) on such day, such investment shall be made by the Indenture Trustee on the next succeeding Business Day. In no event shall the Indenture Trustee be liable for any investment not made pursuant to investment instructions received after 12:00 p.m. (New York City time) on the day such investment is requested to be made. In the absence of timely written direction to the Indenture Trustee, the amounts on deposit shall remain uninvested.
Section 4.11 Note Principal Balance Increases and Note Principal Balance Reductions. Subject to the terms and conditions of the Indenture, this Indenture Supplement and the Notes, during the Revolving Period, the Note Principal Balance may be increased (any such increase being a Note Principal Balance Increase) or repaid and decreased (any such repayment or decrease being a Note Principal Balance Reduction) in accordance with the terms of the Note Purchase Agreement.
Section 4.12 Reduction of Facility Limit. The Facility Limit may be reduced or terminated in accordance with the terms of Section 2.2 of the Note Purchase Agreement.
Section 4.13 Hedging. The Issuer will enter into the Interest Rate Cap Agreement on the Closing Date for Series 2017-VFN. The Issuer will maintain the Interest Rate Cap Agreement or any other Hedging Agreements in accordance with the Hedging Requirements.
Section 4.14 Paydown. On each Payment Date during a Partial Paydown Period, from amounts on deposit in the Series 2017-VFN Series Account or otherwise available to make such distributions, the Indenture Trustee (based on the information contained in the related Monthly Report) shall pay to the Series 2017-VFN Noteholders of record as of the applicable Record Date, pro rata based on the amount owed, the portion of the Aggregate Partial Paydown Amount owed to such Series 2017-VFN Noteholder.
Section 4.15 Series Accounts. The Series 2017-VFN Series Account shall be considered the Series Account for Series 2017-VFN) for purposes of the Transaction Documents.
ARTICLE V
DELIVERY OF SERIES 2017-VFN NOTES;
DISTRIBUTIONS; REPORTS TO SERIES 2017-VFN NOTEHOLDERS
Section 5.1 Delivery and Payment for the Series 2017-VFN Notes.
With respect to the Series 2017-VFN Notes, the Issuer shall execute and the Indenture Trustee shall authenticate the Series 2017-VFN Notes in accordance with Section 2.3 of the Indenture. The Indenture Trustee shall deliver those Series 2017-VFN Notes to or upon the order of the Trust when so authenticated.
Section 5.2 Distributions.
(a) On each Payment Date, the Paying Agent shall distribute to each Series 2017-VFN Noteholder of record on the related Record Date (other than as provided in Section 11.2 of the Indenture) such Series 2017-VFN Noteholders applicable share, as set forth in the applicable Monthly Report delivered to the Indenture Trustee pursuant to Section 3.04(a) of the Transfer and Servicing Agreement, in accordance with this Indenture Supplement and the Note Purchase Agreement, of the amounts held by the Paying Agent that are allocated and available for distribution to such Series 2017-VFN Noteholder on such Payment Date pursuant to Article IV hereof.
(b) Except as provided in Section 11.2 of the Indenture with respect to a final distribution, distributions to Series 2017-VFN Noteholders hereunder shall be made (i) by wire transfer or electronic funds transfer to the extent the Administrative Agent has provided the Servicer, the Paying Agent and the Indenture Trustee with the appropriate account information for the Series 2017-VFN Noteholders (to the extent the account information is incorrect or incomplete, distributions shall be made by check mailed to each Series 2017-VFN Noteholder (at
such Series 2017-VFN Noteholders address as it appears in the Note Register)), and (ii) without presentation or surrender of any Series 2017-VFN Note or the making of any notation thereon.
Section 5.3 Reports and Statements to Series 2017-VFN Noteholders.
(a) Not later than the second Business Day preceding each Payment Date, the Servicer shall deliver to the Owner Trustee, the Indenture Trustee, and the Paying Agent (i) the Monthly Report required to be delivered pursuant to Section 3.04(a) of the Transfer and Servicing Agreement, which Monthly Report for Series 2017-VFN shall contain the items specified on Exhibit B hereto and (ii) the certificate of an Authorized Officer of the Servicer required to be delivered pursuant to Section 3.04(b) of the Transfer and Servicing Agreement, which certificate shall contain the information specified on Exhibit C. For the avoidance of doubt, neither the Paying Agent nor the Indenture Trustee shall be required to recalculate or verify any information contained on the Monthly Report or other certificate or report delivered by the Servicer.
(b) The Indenture Trustee shall promptly deliver or otherwise make available a copy of each statement provided pursuant to paragraph (a) to each Series 2017-VFN Noteholder.
ARTICLE VI
SERIES AMORTIZATION EVENTS
Section 6.1 Series Amortization Events. If any one of the following events shall occur:
(a) The occurrence and continuance of a Series 2017-VFN Event of Default;
(b) A Servicer Default shall have occurred under the Transfer and Servicing Agreement;
(c) The Seller, the Transferor, the Servicer or the Issuer shall fail to:
(i) deliver a report required to be delivered to the Issuer, the Series 2017-VFN Noteholders or the Indenture Trustee pursuant to the Transaction Documents within five (5) Business Days after the due date thereof; provided, that to the extent any such party has notified the Indenture Trustee of the occurrence and continuance of a Force Majeure Event, such five (5) Business Day period shall be extended by an additional five (5) Business Days,
(ii) duly observe or perform the covenants set forth in the Transfer and Servicing Agreement with respect to liens relating to the Receivables, which continues unremedied for a period of three (3) Business Days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Seller, the Transferor, the Servicer or the Issuer, as applicable, or after discovery of such failure by
an Authorized Officer of the Seller, the Transferor, the Servicer or the Issuer, as applicable, or
(iii) duly observe or perform in any material respect any other covenant or agreement of the Seller (or the Seller on behalf of any Originator), the Transferor, the Servicer or the Issuer, as the case may be, set forth in the Transaction Documents, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Seller, the Transferor, the Servicer or the Issuer, as applicable, or after discovery of such failure by an Authorized Officer of the Seller, the Transferor, the Servicer or the Issuer, as applicable; provided, however, that no Series 2017-VFN Early Amortization Event shall be deemed to occur if such failure relates to one or more Receivables which are repurchased in accordance with the Transaction Documents;
(d) Any representation or warranty made by the Issuer, the Transferor, the Seller or any Originator in this Indenture Supplement or the other Transaction Documents, proves to have been incorrect in any material respect when made and such inaccuracy results in an Adverse Effect on the Series 2017-VFN Noteholders and such Adverse Effect continues for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Issuer, the Transferor, the Seller or any Originator, as applicable, or after discovery of such failure by an Authorized Officer of the Issuer, the Transferor, the Seller or any Originator, as applicable; provided, however, no Series 2017-VFN Early Amortization Event shall be deemed to occur if such representation or warranty relates to one or more Receivables which are repurchased in accordance with the Transaction Documents;
(e) An Asset Base Deficiency exists and such condition has existed unremedied for a period of three (3) consecutive days;
(f) The three (3) month average Series 2017-VFN Default Ratio relating to the Receivables shall exceed 10.50%;
(g) The three (3) month average Series 2017-VFN Delinquency Ratio relating to the Receivables shall exceed 4.50%;
(h) The three (3) month average Series 2017-VFN Dilution Ratio relating to the Receivables shall exceed 2.50%;
(i) Failure of the Issuer to maintain Hedging Agreements relating to the Series 2017-VFN Notes in accordance with the Hedging Requirements and such failure shall continue unremedied for a period of sixty (60) days after the date on which written notice of such failure shall have been given to the Issuer, the Transferor or the Servicer, or after discovery of such failure by an Authorized Officer of the Issuer, the Transferor or the Seller, as applicable;
(j) A Change of Control shall have occurred;
(k) Litigation, arbitration or governmental proceedings shall have been instituted involving the Transferor, the Issuer or the Receivables that could reasonably be expected to materially and adversely affect the Transferor or the Issuer or the collectability of the Receivables;
(l) Any money judgment, writ or warrant of attachment or similar process involving in the aggregate at any time an amount in excess of $250,000 (in either case to the extent not adequately covered by indemnification or insurance) shall be entered or filed against the Transferor or Issuer, as applicable, or any of their respective assets and shall remain undischarged, unpaid, unvacated, unappealed, unbonded or unstayed for a period of thirty (30) days;
(m) The Seller, the Transferor, the Performance Guarantor or USCC (if USCC is no longer the Performance Guarantor) shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $25,000,000 in the aggregate, in each case when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure to pay shall continue for two (2) days after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt;
(n) There shall have occurred an event or situation with respect to the Transferor, the Performance Guarantor, the Servicer, the Seller or any Originator, that shall have a material adverse effect on (i) the financial condition or operations of the Transferor, the Performance Guarantor, the Servicer or the Seller, as applicable, and their representative subsidiaries, as the case may be, taken as one enterprise; (ii) the ability of the Transferor, the Performance Guarantor, the Servicer, the Seller or any Originator to perform its respective material obligations under the Transaction Documents; (iii) the legality, validity or enforceability of any of the Transaction Documents, (iv) the interest of any Series 2017-VFN Noteholder in the Receivables or in any significant portion thereof, or (v) the collectability of the aggregate amount of Receivables or of any significant portion of the Receivables, other than, in the case of clauses (i) through (v), such material adverse effects which are the direct result of actions or omissions of any Series 2017-VFN Noteholder;
(o) Any Series 2017-VFN Noteholder, by its holding of Series 2017-VFN Notes, has, acquires, or is deemed to have an ownership interest in a covered fund for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956, commonly known as the Volcker Rule;
(p) The Performance Guarantor shall purport to revoke or terminate the Performance Guaranty, or the Performance Guaranty shall no longer be in effect; or the Performance Guarantor shall fail to perform, in a timely manner, any of its obligations under the Performance Guaranty or the Note Purchase Agreement; or there shall have occurred any material breach of any of the representations and warranties, or any covenants or other agreements, made by the Performance Guarantor under the Performance Guaranty;
(q) with respect to USCC, the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of USCC shall be less than 3.00 to 1.00;
(r) with respect to USCC, the Consolidated Leverage Ratio as of the end of any fiscal quarter of USCC during the period set forth below shall be greater than the ratios indicated for each period specified below:
Period |
|
Ratio |
From the Initial Closing Date through June 30, 2019 |
|
3.25 to 1.00 |
From July 1, 2019 and thereafter |
|
3.00 to 1.00 |
(s) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA, or a contribution failure occurs sufficient to give rise to a lien under Section 303(k) of ERISA or Section 430(k) of the Code, with regard to any of the assets of the Seller, the Servicer, the Performance Guarantor, the Issuer or the Transferor, and, in each case, such lien shall not have been released within thirty (30) days; or
(t) the amount on deposit in the Excess Funding Account relied upon in order to prevent an Asset Base Deficiency for Series 2017-VFN exceeds fifty percent (50%) of the Asset Base;
then, in the case of any event described in subsections (b) through (t), after the applicable grace period, if any, set forth in such subparagraphs, either the Indenture Trustee or the Holders of Series 2017-VFN Notes evidencing 100% of the aggregate Outstanding Amount of Series 2017-VFN Notes by notice then given in writing to the Issuer, the Transferor and the Servicer (and to the Indenture Trustee if given by the Series 2017-VFN Noteholders) may declare that an amortization event (each, a Series 2017-VFN Early Amortization Event) has occurred as of the date of such notice, and in the case of any event described in subsection (a), a Series 2017-VFN Early Amortization Event shall occur with respect to Series 2017-VFN without any notice or other action on the part of the Indenture Trustee or the Series 2017-VFN Noteholders immediately upon the occurrence of such event. A Series 2017-VFN Early Amortization Event shall constitute a Series Amortization Event (and therefore an Amortization Event) for purposes of the Indenture.
In addition to any rights and remedies granted to the Indenture Trustee and the Series 2017-VFN Noteholders pursuant to the terms of the Indenture, following the occurrence and continuance of a Series 2017-VFN Event of Default, the Administrative Agent for the Series 2017-VFN Notes (in conjunction with the corresponding entity of any other Series of Notes then Outstanding that has an audit appointment right set forth in its indenture supplement) may appoint an independent auditor of national reputation reasonably acceptable to the Servicer to verify that all prior Monthly Reports delivered under the Transfer and Servicing Agreement and the Indenture have been prepared and delivered in accordance with the terms of the Transfer and Servicing Agreement and the Indenture.
ARTICLE VII
SERIES 2017-VFN EVENTS OF DEFAULT
Section 7.1 Series 2017-VFN Events of Default. If any one or more of the following events shall occur with respect to Series 2017-VFN (each, a Series Event of Default with respect to Series 2017-VFN):
(a) Default in the payment of any interest on the Series 2017-VFN1 Notes when the same becomes due and payable and such default shall continue for a period of five (5) Business Days;
(b) Failure on the part of the Issuer, the Transferor, the Servicer, the Seller or any Originator to make any payment, transfer or deposit required by the terms of any Transaction Document on or before the date such payment, transfer or deposit is required to be made and such failure shall continue for a period of five (5) Business Days after the date on which written notice of such breach, requiring the same to be remedied, shall have been given to the Issuer, the Transferor, the Servicer, the Seller or such Originator, as applicable, or after discovery of such breach, requiring the same to be remedied, by an Authorized Officer of the Issuer, the Transferor, the Servicer, the Seller or such Originator, as applicable;
(c) A breach of any covenant of the Issuer, the Transferor, the Servicer, the Seller or any Originator in any Transaction Document, which breach (i) has an Adverse Effect on the interest of any Series 2017-VFN Noteholder and (ii) continues for a period of thirty (30) days after the date on which written notice of such breach, requiring the same to be remedied, shall have been given to the Issuer, the Transferor, the Servicer, the Seller or such Originator, as applicable, or after discovery of such breach, requiring the same to be remedied, by an Authorized Officer of the Issuer, the Transferor, the Servicer, the Seller or such Originator, as applicable;
(d) As of any date of determination, an Asset Base Deficiency exists, and such condition continues unremedied for a period of ten (10) consecutive days; or
(e) The Indenture Trustee shall fail to have a first priority perfected security interest in a material portion of the Trust Assets or the Series Collateral for Series 2017-VFN.
then, in the case of any event after the applicable grace period, if any, described in subsections (a) through (e) set forth in such subparagraphs, either the Indenture Trustee or the Holders of Series 2017-VFN Notes evidencing 100% of the aggregate Outstanding Amount of Series 2017-VFN Notes by notice then given in writing to the Issuer, the Transferor and the Servicer (and to the Indenture Trustee if given by the Series 2017-VFN Noteholders) may declare that an event of default (a Series 2017-VFN Event of Default) has occurred as of the date of such notice. A Series 2017-VFN Event of Default shall constitute a Series Event of Default (and therefore an Event of Default) for purposes of the Indenture.
ARTICLE VIII
REDEMPTION OF SERIES 2017-VFN NOTES;
FINAL DISTRIBUTIONS
Section 8.1 Optional Redemption of Series 2017-VFN Notes.
(a) On any day occurring on or after the date on which the Note Principal Balance is reduced to 10% or less of the greatest ever Note Principal Balance, the Transferor shall have the option to redeem the Series 2017-VFN Notes, at a purchase price equal to (i) if such day is a Payment Date, the Redemption Amount for such Payment Date or (ii) if such day is not a Payment Date, the Redemption Amount for the Payment Date following such day.
(b) The Transferor shall give the Servicer, the Indenture Trustee and the Administrative Agent at least thirty (30) days prior written notice of the date on which the Transferor intends to exercise the optional redemption provided for in Section 8.1(a), and the Indenture Trustee shall promptly notify the Series 2017-VFN Noteholders. Not later than one (1) Business Day prior to the date of redemption (or such other time period as agreed to by the Indenture Trustee and the Transferor), the Transferor shall deposit into the Series 2017-VFN Series Account in immediately available funds the Redemption Amount. Such redemption option is subject to payment in full of the Redemption Amount. Following such deposit into the Series 2017-VFN Series Account, the Invested Amount for Series 2017-VFN shall be reduced to zero and the Series 2017-VFN Noteholders and the Transferor shall have no further interest in or claim against the Trust. The Redemption Amount shall be distributed to the Series 2017-VFN Noteholders in full payment of amounts owing on the Notes.
Section 8.2 Payment in Redemption of the Series 2017-VFN Notes.
(a) With respect to the Redemption Amount deposited into the Series 2017-VFN Series Account pursuant to Section 8.1, the Indenture Trustee shall, in accordance with the written direction of the Servicer, on the related Payment Date, make deposits or distributions in the priority set forth below and, in each case after giving effect to any deposits and distributions otherwise to be made on such date) in same day funds: (i) the Note Principal Balance on such Payment Date will be deposited with the Paying Agent for payment to the Series 2017-VFN Noteholders and (ii) an amount equal to the sum of (A) Monthly Interest for such Payment Date and (B) any Monthly Interest previously due but not distributed to the Series 2017-VFN Noteholders on a prior Payment Date and (C) any Additional Amounts due or previously due but not distributed to the Series 2017-VFN Noteholders on a prior Payment Date will be deposited with the Paying Agent for payment to the Series 2017-VFN Noteholders.
(b) Notwithstanding anything to the contrary in this Indenture Supplement or the Indenture, all amounts deposited with the Paying Agent pursuant to Section 8.2(a) for payment to the Series 2017-VFN Noteholders shall be deemed distributed in full to the Series 2017-VFN Noteholders on the date on which such funds are deposited with the Paying Agent pursuant to Section 8.2(a) and to the extent of such payment the Series 2017-VFN Notes shall be deemed to be no longer Outstanding as such term is defined in Annex A to the Indenture.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Ratification of Indenture. As supplemented by this Indenture Supplement, the Indenture is in all respects ratified and confirmed and the Indenture as so supplemented by this Indenture Supplement shall be read, taken and construed as one and the same instrument.
Section 9.2 Counterparts. This Indenture Supplement may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
Section 9.3 GOVERNING LAW. THIS INDENTURE SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.4 Transfer Restrictions.
(a) Each purchaser or transferee of a Series 2017-VFN Note that is a Benefit Plan or a person acting on behalf of or investing the assets of a Benefit Plan shall be deemed to represent that its purchase, holding and disposition of the Series 2017-VFN Note will not result in a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
(b) As of the Closing Date, the Notes have not been registered under the Securities Act, or any state securities or blue sky laws. The Notes may not be offered, sold, pledged or otherwise transferred except to Permitted Transferees and in accordance with Section 6.1 of the Note Purchase Agreement, including delivery of an Investment Letter as specified therein.
Section 9.5 Certain Commercial Law Representations and Warranties.
(a) The Issuer hereby represents and warrants to the Indenture Trustee, as of the Closing Date, that:
(i) this Indenture Supplement creates a valid and continuing security interest (as defined in the applicable UCC) in the Receivables in favor of the Indenture Trustee on behalf of the Series 2017-VFN Noteholders, which security interest is prior to all other liens, and is enforceable as such against creditors of and purchasers from the Issuer; and
(ii) at the time of its grant of any security interest in the Receivables pursuant to this Indenture Supplement, the Issuer owned and had good and marketable title to the Receivables free and clear of any lien, claim or encumbrance of any Person.
(b) The representations and warranties set forth in this Section 9.5 shall survive until the final payment on the Series 2017-VFN Notes shall be distributed in full to the Series 2017-VFN Noteholders.
Section 9.6 Limitation on Owner Trustee Liability. It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by Wilmington Trust, National Association,, not individually or personally but solely as owner trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it pursuant to the Trust Agreement, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by Wilmington Trust, National Association, but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association,, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association, be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or any other related documents.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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USCC MASTER NOTE TRUST | |
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By: Wilmington Trust, National Association,, not in its individual capacity, but solely as Owner Trustee | |
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[Signature Page to Series 2017-VFN Indenture Supplement]
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U.S. BANK NATIONAL ASSOCIATION, | |
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not in its individual capacity, but solely as | |
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Indenture Trustee | |
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By: |
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Name: |
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Title: |
[Signature Page to Series 2017-VFN Indenture Supplement]
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USCC SERVICES, LLC, | |
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as Servicer | |
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By: |
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Title: |
[Signature Page to Series 2017-VFN Indenture Supplement]
EXHIBIT A
[FORM OF] SERIES 2017-VFN FLOATING RATE ASSET BACKED NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT. NO RESALE OR OTHER TRANSFER OF THIS NOTE MAY BE MADE EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS UNDER STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH PROVISIONS. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN A NOTE PURCHASE AGREEMENT RELATING HERETO AND THE INDENTURE AND THE SERIES 2017-VFN INDENTURE SUPPLEMENT REFERRED TO HEREIN.
EXCEPT IN THE CASE OF A SERIES 2017-VFN NOTE OWNED BY THE TRANSFEROR OR BY A PERSON DISREGARDED FOR FEDERAL INCOME TAX PURPOSES AS A PERSON, SEPARATE FROM THE TRANSFEROR, THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE SERIES 2017-VFN NOTES AS INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW.
THE HOLDER OF THIS NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT ACQUIRING THE NOTE WITH THE ASSETS OF AN EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA), THAT IS SUBJECT TO TITLE I OF ERISA, A PLAN AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) THAT IS SUBJECT TO SECTION 4975 OF THE CODE, AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLANS OR PLANS INVESTMENT IN SUCH ENTITY, OR A GOVERNMENTAL, CHURCH, NON-U.S. OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE, LOCAL OR NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (EACH SUCH ENTITY A BENEFIT PLAN); OR (II) THE PURCHASE, HOLDING AND DISPOSITION OF THE SERIES 2017-VFN NOTE WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION OF ANY SUBSTANTIALLY SIMILAR APPLICABLE LAW.
REGISTERED |
Maximum Principal Balance: $ |
No. R-[ ] |
[CUSIP NO. ] |
USCC MASTER NOTE TRUST, SERIES 2017-VFN
FORM OF SERIES 2017-VFN FLOATING RATE ASSET BACKED NOTE
USCC Master Note Trust, a Delaware statutory trust (herein referred to as the Issuer or the Trust), for value received, hereby promises to pay to [ ], or registered assigns, subject to the following provisions, the principal sum of $[ ], or such greater or lesser amount as determined in accordance with the Indenture, on the Series 2017-VFN Stated Maturity Date, except as otherwise provided below or in the Indenture. The Issuer will pay interest on the unpaid principal amount of this Series 2017-VFN Note at the Note Rate on each Payment Date until the principal amount of this Series 2017-VFN Note is paid in full. Interest on this Series 2017-VFN Note will accrue for each Payment Date from and including the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, for the initial Payment Date, from and including the Closing Date to but excluding such Payment Date. Interest will be computed on the basis of a 360-day year and the actual number of days elapsed. Principal of this Series 2017-VFN Note shall be paid in the manner specified on the reverse hereof.
Capitalized terms used but not defined herein are defined in Annex A of the Indenture, and, if not therein, in the Series 2017-VFN Indenture Supplement.
The principal of and interest on this Series 2017-VFN Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is made to the further provisions of this Series 2017-VFN Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by or on behalf of the Indenture Trustee, by manual signature, this Series 2017-VFN Note shall not be entitled to any benefit under the Indenture or the Series 2017-VFN Indenture Supplement referred to on the reverse hereof, or be valid for any purpose.
This Series 2017-VFN Note has been executed by Wilmington Trust, National Association, not in its individual capacity but solely in its capacity as Owner Trustee and in no event shall Wilmington Trust, National Association in its individual capacity or as Owner Trustee have any liability for the representations, warranties, covenants, agreements or other obligations of the Trust or any other Person hereunder or other documents delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Trust. For all purposes of this Series 2017-VFN Note, in the performance of any duties or obligations of the Owner Trustee hereunder, the Owner Trustee shall be entitled to the benefits of the terms and provisions of the Trust Agreement.
IN WITNESS WHEREOF, the Issuer has caused this Series 2017-VFN Note to be duly executed.
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USCC MASTER NOTE TRUST | |
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By: Wilmington Trust, National Association, not in its individual capacity, but solely as Owner Trustee | |
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By: |
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Name: |
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Title: |
Dated: 2017
INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture and the Series 2017-VFN Indenture Supplement.
Dated: |
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U.S. BANK NATIONAL ASSOCIATION, | |||
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as Indenture Trustee | |||
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Authorized Signatory |
USCC MASTER NOTE TRUST, SERIES 2017-VFN
SERIES 2017-VFN FLOATING RATE ASSET BACKED NOTE
Summary of Terms and Conditions
This Series 2017-VFN Note is one of a duly authorized issue of Notes (the Notes) of the Issuer, designated as USCC Master Note Trust (the Issuer), created by an Amended and Restated Trust Agreement, dated as of December 20, 2017, by and between USCC Receivables Funding LLC and Wilmington Trust, National Association, as owner trustee (not in its individual capacity, but solely as trustee, the Owner Trustee). The Notes are issued under a Master Indenture, dated as of December 20, 2017 (the Master Indenture), among the Issuer, USCC Services, LLC, as servicer (the Servicer) and U.S. Bank National Association, as indenture trustee (the Indenture Trustee), as supplemented by the Series 2017-VFN Indenture Supplement, dated as of December 20, 2017 (the Series 2017-VFN Indenture Supplement), and represent the right to receive certain payments from the Issuer. The term Indenture, unless the context otherwise requires, refers to the Master Indenture as supplemented by the Series 2017-VFN Indenture Supplement. The Notes are subject to all of the terms of the Indenture. All terms used but not defined in this Series 2017-VFN Note shall have the meanings assigned to them in or pursuant to the Indenture or the Series 2017-VFN Indenture Supplement.
The Series 2017-VFN Noteholder, by its acceptance of this Note, agrees that it will look solely to the property of the Trust allocated to the payment of this Series 2017-VFN Note for payment hereunder and that the Indenture Trustee is not liable to the Series 2017-VFN Noteholders for any amount payable under the Series 2017-VFN Note or the Indenture or, except as expressly provided in the Indenture, subject to any liability under the Indenture.
This Series 2017-VFN Note does not purport to summarize the Indenture and reference is made to the Indenture for the interests, rights and limitations of rights, benefits, obligations and duties evidenced thereby, and the rights, duties and immunities of the Indenture Trustee.
The Initial Note Principal Balance is $[ ].
The Note Principal Balance will be determined from time to time by the Indenture Trustee in accordance with the Indenture and the Note Purchase Agreement (as defined in the Series 2017-VFN Indenture Supplement).
Payments of principal of the Notes shall be payable in accordance with the provisions of the Indenture.
Subject to the terms and conditions of the Indenture, the Trust may, from time to time, issue one or more new Series of Notes.
On each Payment Date, the Paying Agent shall distribute to each Series 2017-VFN Noteholder of record on the related Record Date (except for the final distribution in respect of this Note) such Series 2017-VFN Noteholders pro rata share of the amounts held by the Paying Agent that are allocated and available on such Payment Date to pay interest and principal on the Notes pursuant to the Series 2017-VFN Indenture Supplement. Except as provided in the
Indenture with respect to a final distribution, distributions to Series 2017-VFN Noteholders shall be made by (i) wire transfer or check mailed to each Series 2017-VFN Noteholder (at such Series 2017-VFN Noteholders address as it appears in the Note Register), except that with respect to any Series 2017-VFN Notes registered in the name of the nominee of a Clearing Agency, such distribution shall be made in immediately available funds and (ii) without presentation or surrender of any Series 2017-VFN Note or the making of any notation thereon. Final payment of this Series 2017-VFN Note will be made only upon presentation and surrender of this Series 2017-VFN Note at the office or agency specified in the notice of final distribution delivered by the Indenture Trustee to the Series 2017-VFN Noteholders in accordance with the Indenture.
On any day occurring on or after the date on which the outstanding principal balance of the Series 2017-VFN Notes is reduced to 10% or less of the greatest ever principal balance of the Series 2017-VFN Notes, subject to the terms of the Series 2017-VFN Indenture Supplement, the Transferor shall have the option to redeem the Series 2017-VFN Notes, at a purchase price equal to (i) if such day is a Payment Date, the Redemption Amount for such Payment Date or (ii) if such day is not a Payment Date, the Redemption Amount for the Payment Date following such day.
THIS NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, THE TRANSFEROR, THE SERVICER, OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
Each Series 2017-VFN Noteholder, by accepting a Note, hereby covenants and agrees that it will not at any time institute against the Issuer or the Transferor, or join in instituting against the Issuer or the Transferor, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law.
Except as otherwise provided in the Series 2017-VFN Indenture Supplement, the Notes are issuable only in minimum denominations of $100,000 and integral multiples of $1,000. The transfer of this Series 2017-VFN Note shall be registered in the Note Register upon surrender of this Series 2017-VFN Note for registration of transfer at any office or agency maintained by the Transfer Agent and Registrar accompanied by a written instrument of transfer, in a form satisfactory to the Indenture Trustee or the Transfer Agent and Registrar, duly executed by the Series 2017-VFN Noteholder or such Series 2017-VFN Noteholders attorney, and duly authorized in writing with such signature guaranteed, and thereupon one or more new Notes in any authorized denominations of like aggregate principal amount will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for new Notes in any authorized denominations and of like aggregate principal amount, upon surrender of such Notes to be exchanged at the office or agency of the Transfer Agent and Registrar. No service charge may be imposed for any such exchange but the Issuer or
Transfer Agent and Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
The Issuer, the Transferor, the Indenture Trustee and any agent of the Issuer, Transferor or the Indenture Trustee shall treat the person in whose name this Series 2017-VFN Note is registered as the owner hereof for all purposes, and neither the Issuer, the Transferor, the Indenture Trustee nor any agent of the Issuer, Transferor or the Indenture Trustee shall be affected by notice to the contrary.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto (name and address of assignee) the within note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said note on the books kept for registration thereof, with full power of substitution in the premises.
Dated:
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Signature Guaranteed | |
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** NOTE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within note in every particular, without alteration, enlargement, or any change whatsoever.
EXHIBIT B
[FORM OF] MONTHLY SERVICING STATEMENT
FOR SERIES 2017-VFN
(Delivered Pursuant To Section 5.3(a)
Of The Indenture Supplement)
USCC SERVICES, LLC, AS SERVICER (the Servicer)
USCC RECEIVABLES FUNDING LLC (the Transferor)
USCC MASTER NOTE TRUST (the Trust) NOTES, SERIES 2017-VFN
[Attached]
EXHIBIT C
[FORM OF] SERVICERS CERTIFICATE
FOR SERIES 2017-VFN
USCC SERVICES, LLC, AS SERVICER
USCC RECEIVABLES FUNDING LLC
USCC MASTER NOTE TRUST NOTES, SERIES 2017-VFN
The undersigned, a duly authorized representative of USCC Services, LLC (USCC Services), as Servicer (the Servicer), pursuant to the Transfer and Servicing Agreement, dated as of December 20, 2017 as may be amended (the Transfer and Servicing Agreement), by and among USCC Receivables Funding LLC, as Transferor, the Servicer, as Servicer and as Custodian, and Wilmington Trust, National Association, not in its individual capacity, but solely as Owner Trustee, does hereby certify with respect to the information set forth below as follows:
Capitalized terms used in this Certificate shall have the respective meanings set forth in the Transfer and Servicing Agreement.
USCC Services is, as of the date hereof, the Servicer under the Transfer and Servicing Agreement
The undersigned is a Servicing Officer.
This Certificate relates to the Payment Date occurring on .
As of the date hereof, to the best knowledge of the undersigned, no Amortization Event, Event of Default or Servicer Default has been deemed to have occurred on or prior to such Payment Date.
The amounts specified to be deposited into and withdrawn from the Collection Account, as well as the amounts specified to be paid to the Transferor, the Servicer and the Series 2017-VFN Noteholders are all in accordance with the requirements of the Transfer and Servicing Agreement, Master Indenture, and Indenture Supplement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate this day of , 20 .
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USCC SERVICES, LLC, | |
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as Servicer | |
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By: |
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SERIES 2017-VFN NOTE PURCHASE AGREEMENT
Dated as of December 20, 2017
among
USCC RECEIVABLES FUNDING LLC,
as Transferor
USCC MASTER NOTE TRUST,
as Issuer,
USCC SERVICES, LLC,
as Servicer
UNITED STATES CELLULAR CORPORATION,
as Performance Guarantor
THE OWNERS PARTY HERETO,
THE MANAGING AGENTS PARTY HERETO,
and
ROYAL BANK OF CANADA,
as Administrative Agent
USCC Master Note Trust
Series 2017-VFN Notes
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TABLE OF CONTENTS
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Page | |
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ARTICLE I DEFINITIONS |
2 | |
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SECTION 1.1 |
Definitions |
2 |
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SECTION 1.2 |
Other Definitional Provisions |
19 |
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ARTICLE II TERMS OF THE SERIES 2017-VFN NOTES |
19 | |
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SECTION 2.1 |
Issuance of Series 2017-VFN Notes; Note Principal Balance Increases; Note Principal Balance Reductions |
19 |
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SECTION 2.2 |
Reduction, Increase and Extension of Commitments |
22 |
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SECTION 2.3 |
Interest, Fees, Expenses, Payments, Etc. |
25 |
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SECTION 2.4 |
Requirements of Law |
28 |
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SECTION 2.5 |
Taxes |
29 |
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SECTION 2.6 |
Indemnification |
31 |
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SECTION 2.7 |
Expenses, Etc. |
35 |
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ARTICLE III CONDITIONS PRECEDENT |
36 | |
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SECTION 3.1 |
Conditions to Purchase of Series 2017-VFN Notes |
36 |
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SECTION 3.2 |
Conditions to Note Principal Balance Increases |
38 |
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ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS |
40 | |
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SECTION 4.1 |
Representations and Warranties of the Servicer, the Transferor and the Issuer |
40 |
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SECTION 4.2 |
Additional Representations and Warranties of the Servicer |
44 |
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SECTION 4.3 |
Additional Representations and Warranties of the Transferor |
45 |
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SECTION 4.4 |
[Reserved] |
45 |
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SECTION 4.5 |
Representations and Warranties of the Conduit Purchasers and Committed Purchasers |
45 |
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SECTION 4.6 |
Covenants of the Issuer and Transferor |
46 |
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SECTION 4.7 |
Covenants of the Servicer |
52 |
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SECTION 4.8 |
[Reserved] |
61 |
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SECTION 4.9 |
Additional Covenants of the Transferor and the Servicer |
61 |
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SECTION 4.10 |
Merger or Consolidation of, or Assumption, of the Obligations of the Transferor or the Seller |
63 |
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ARTICLE V THE AGENTS |
65 | |
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SECTION 5.1 |
Appointment |
65 |
TABLE OF CONTENTS
(continued)
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Page |
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SECTION 5.2 |
Delegation of Duties |
66 |
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SECTION 5.3 |
Exculpatory Provisions |
66 |
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SECTION 5.4 |
Reliance by Agents |
67 |
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SECTION 5.5 |
Notices |
67 |
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SECTION 5.6 |
Non Reliance on Agents and Other Owners |
68 |
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SECTION 5.7 |
Indemnification |
68 |
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SECTION 5.8 |
Agents in their Individual Capacity |
69 |
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SECTION 5.9 |
Successor Agents |
69 |
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SECTION 5.10 |
Funding Decision |
70 |
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ARTICLE VI TRANSFERS OF SERIES 2017-VFN NOTES |
70 | |
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SECTION 6.1 |
Transfers of Series 2017-VFN Notes |
70 |
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ARTICLE VII MISCELLANEOUS |
74 | |
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SECTION 7.1 |
Amendments and Waivers |
74 |
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SECTION 7.2 |
Notices |
77 |
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SECTION 7.3 |
Confidentiality |
78 |
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SECTION 7.4 |
No Waiver; Cumulative Remedies |
80 |
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SECTION 7.5 |
Successors and Assigns |
80 |
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SECTION 7.6 |
Successors to Servicer |
81 |
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SECTION 7.7 |
Counterparts |
81 |
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SECTION 7.8 |
Severability |
81 |
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SECTION 7.9 |
Integration |
81 |
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SECTION 7.10 |
Governing Law |
81 |
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SECTION 7.11 |
WAIVER OF JURY TRIAL |
81 |
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SECTION 7.12 |
Jurisdiction; Consent to Service of Process |
82 |
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SECTION 7.13 |
Termination |
82 |
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SECTION 7.14 |
Limited Recourse; No Proceedings |
82 |
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SECTION 7.15 |
Survival of Representations and Warranties |
83 |
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SECTION 7.16 |
No Recourse |
83 |
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SECTION 7.17 |
RBC Roles |
84 |
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SECTION 7.18 |
USA PATRIOT Act |
84 |
TABLE OF CONTENTS
(continued)
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Page |
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SECTION 7.19 |
Tax Characterization |
84 |
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SECTION 7.20 |
Accounting Treatment by Owners |
85 |
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SECTION 7.21 |
Collections |
85 |
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SECTION 7.22 |
Limitation of Liability of Owner Trustee |
85 |
EXHIBITS |
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EXHIBIT A |
FORM OF TRANSFER SUPPLEMENT |
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EXHIBIT B |
FORM OF FUNDING NOTICE |
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EXHIBIT C |
FORM OF COMPLIANCE STATEMENT |
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EXHIBIT D |
FORM OF INVESTMENT LETTER |
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EXHIBIT E |
[RESERVED] |
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EXHIBIT F |
FORM OF INTEREST RATE CAP AGREEMENT |
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EXHIBIT G |
HEDGING REQUIREMENTS |
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ANNEX |
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ANNEX I |
AGREED-UPON PROCEDURES |
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SCHEDULES |
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SCHEDULE I |
CONDUIT PURCHASER, COMMITTED PURCHASER, MANAGING AGENTS AND RELATED INFORMATION |
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SCHEDULE II |
NOTICE INFORMATION |
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SCHEDULE III |
ORGANIZATIONAL INFORMATION |
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SCHEDULE IV |
LIST OF CLOSING DELIVERIES |
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THIS SERIES 2017-VFN NOTE PURCHASE AGREEMENT, dated as of December 20, 2017, is by and among USCC RECEIVABLES FUNDING LLC, a Delaware limited liability company (the Transferor), USCC MASTER NOTE TRUST, a Delaware statutory trust (together with its successors and assigns, the Issuer), USCC SERVICES, LLC, a Delaware limited liability company (USCC SERVICES), as the servicer (in such capacity, the Servicer), UNITED STATES CELLULAR CORPORATION (USCC), a Delaware corporation, as the performance guarantor under the Performance Guaranty (in such capacity, the Performance Guarantor), the Owners (as hereinafter defined) from time to time party hereto, the Managing Agents for the Ownership Groups from time to time party hereto, and ROYAL BANK OF CANADA (RBC), as administrative agent for the Owners (together with its successors in such capacity, the Administrative Agent).
W I T N E S S E T H:
WHEREAS, the Originators (as defined in the Indenture), which are affiliates of the Seller (as defined below), in the ordinary course of their business finance the purchase by their respective subscribers of retail equipment installment plan contracts for wireless handheld devices, thereby generating certain payment obligations under contracts established with such subscribers;
WHEREAS, the Originators have transferred, and from time to time will transfer, their respective interests in certain of these equipment installment plan receivables and related rights, pursuant to the Receivables Sale Agreement (as the same may be amended, supplemented or otherwise modified from time to time, the Receivables Sale Agreement), dated as of March 17, 2017, among each of the initial Originators named therein (and such additional Originators that may become party thereto from time to time), as sellers, and USCC EIP LLC, as purchaser;
WHEREAS, USCC EIP LLC, as seller (in such capacity, the Seller) and the Transferor, as purchaser, have entered into that certain Receivables Purchase Agreement, dated as of the date hereof (as the same may be amended, supplemented or otherwise modified from time to time, the Receivables Purchase Agreement), pursuant to which, among other things, the Seller has agreed to sell, assign, transfer and convey, from time to time, its right, title and interest in, to and under certain Receivables, Related Rights and other related assets to the Transferor;
WHEREAS, the Transferor, the Issuer and the Servicer have entered into that certain Transfer and Servicing Agreement, dated as of the date hereof (as the same may be amended, supplemented or otherwise modified from time to time, the Transfer and Servicing Agreement), pursuant to which, among other things, the Transferor has agreed to transfer, from time to time, its right, title and interest in, to and under the Receivables, Related Rights and other related assets that it has acquired pursuant to the Receivables Purchase Agreement, to the Issuer, and the Servicer has agreed to service such Receivables;
WHEREAS, the Issuer and U.S Bank National Association, not in its individual capacity, but solely as indenture trustee (in such capacity, the Indenture Trustee), have entered into that certain Master Indenture, dated as of the date hereof (as the same may be amended,
supplemented or otherwise modified from time to time, the Indenture), pursuant to which the Issuer may issue Notes on the date hereof and from time to time hereafter;
WHEREAS, the Issuer, the Servicer and the Indenture Trustee have entered into that certain Series 2017-VFN Indenture Supplement, dated as of the date hereof (as the same may be amended, supplemented or otherwise modified from time to time, the Series 2017-VFN Supplement) to provide for, among other things, the creation and issuance of $200,000,000 maximum aggregate principal amount of Series 2017-VFN Floating Rate Asset Backed Notes (the Series 2017-VFN Notes) in accordance with Article II of the Indenture; and
WHEREAS, the Owners are willing to acquire the Series 2017-VFN Notes on the Initial Closing Date and from time to time thereafter to fund Note Principal Balance Increases on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. All capitalized terms used herein as defined terms and not defined herein shall have the meanings given to them in Annex A to the Indenture or the Series 2017-VFN Supplement, as applicable, each as in effect on the date of this Agreement and as it may be amended or otherwise modified from time to time. Each capitalized term defined herein shall relate only to the Series 2017-VFN Notes and to no other Class of Notes issued pursuant to the Indenture.
3MLIBOR shall mean, with respect to any day during any Interest Period, a rate determined at approximately 11:00 a.m. (London time) equal to the interest rate per annum designated as 3MLIBOR for the related Managing Agent (or its Affiliate) appearing on Reuters Screen LIBOR03 page on the Reuters Service (or such other page as may replace the LIBOR03 page on that service or such other service as may be nominated by ICE (or the successor thereto if ICE is no longer making 3MLIBOR available), in each case, for the purpose of displaying London interbank offered rates of major banks) as the rate for U.S. Dollar deposits for a period comparable to 3-months and in an amount comparable to the applicable portion of the Note Principal Balance to accrue interest by reference to such interest rate. In the event no rate is so posted, 3MLIBOR shall mean the arithmetic average (rounded up to only four decimal places) of the rates per annum offered to the principal London office of the related Managing Agent (or if any Managing Agent does not maintain a London office, the principal London office of an Affiliate of such Managing Agent) by three (3) London banks, selected by the Managing Agent in good faith, for U.S. Dollar deposits for a period comparable to 3 month and in an amount comparable to the applicable portion of the Note Principal Balance to accrue interest by reference to such interest rate. If fewer than three (3) quotations are provided as requested, the rate for that Interest Period will be the arithmetic mean of the three (3) rates quoted by major banks selected by the related Managing Agent in good faith in New York City for loans in United States dollars to leading European banks for a period comparable to such Interest Period,
such mean to be calculated by the Indenture Trustee at approximately 11:00 a.m., New York City time, on that day. For the avoidance of doubt, the Indenture Trustee shall have no obligation to determine any alternative index if LIBOR is not available at the time any such calculation is to be made.
Adjusted Commitment shall mean with respect to any date of determination, with respect to an Owner, such Owners Commitment, minus the aggregate outstanding principal amount of its Support Advances to the Conduit Purchasers in its related Ownership Group as of such date.
Administrative Agent shall have the meaning specified in the preamble to this Agreement.
Administrative Agent Fee Letter shall mean the agreement, dated as of the Initial Closing Date, between the Transferor and the Administrative Agent, setting forth certain fees payable by the Transferor to the Administrative Agent.
Advisors shall have the meaning specified in Section 7.3(b) of this Agreement.
Agent shall have the meaning specified in Section 5.1(a) of this Agreement.
Agreement shall mean this Series 2017-VFN Note Purchase Agreement, as amended, restated, supplemented or otherwise modified from time to time.
Amortization Rate shall mean 1.00% per annum.
Anti-Corruption Laws shall mean all laws, rules, and regulations of any jurisdiction applicable to the Servicer, the Transferor or their respective Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended, and any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Assignee and Assignment shall have the respective meanings specified in Section 6.1(e) of this Agreement.
Breakage Costs shall mean (a) for any change in the basis for calculation of interest on any Conduit Purchasers Percentage Interest of the Note Principal Balance from the Commercial Paper Rate to the Liquidity Funding Rate, (b) for any payment of principal of any Series 2017-VFN Note (i) on a date other than a Payment Date or (ii) upon fewer than two (2) Business Days prior written notice or (c) for any failure of the Issuer to borrow any Note Principal Balance Increase on the date specified in the related Funding Notice, the loss, cost and expense attributable to such event, including, in the case of clause (a), any loss, cost or expense suffered by such Conduit Purchaser by reason of its issuance of Commercial Paper Notes or its incurrence of other obligations reasonably allocated by such Conduit Purchaser (or its related Managing Agent) to funding or maintaining its interest in the applicable Series 2017-VFN Note, and which, in the case of clauses (b) and (c), will be deemed to include an amount determined by the applicable Owner to be equal to the excess of (x) the amount of interest that such Owner
would have received on the principal amount of such payment or Note Principal Balance Increase for a period of two (2) Business Days from the date of such payment or failure at the Note Rate, over (y) the amount of income such Owner estimates it will receive on the investment of an amount equal to the principal amount of such payment or Note Principal Balance Increase for such two (2) Business Day period.
Cap Counterparty shall mean Royal Bank of Canada, as a party to the initial Interest Rate Cap Agreement, and each other Eligible Cap Counterparty that enters into an Eligible Interest Rate Cap relating to the Series 2017-VFN Notes.
Closing shall have the respective meanings specified in Section 2A.1 of this Agreement.
Collateral Agent means, with respect to each Conduit Purchaser, the collateral agent, if any, under the program documents governing the issuance of its Commercial Paper Notes, together with its successors and assigns in such capacity.
Commercial Paper Notes shall mean, with respect to a Conduit Purchaser, the short term promissory notes issued by such Conduit Purchaser which are allocated in whole or in part by such Conduit Purchaser (or its related Managing Agent) to fund or maintain its interest in a Series 2017-VFN Note hereunder.
Commercial Paper Rate shall mean, for any Interest Period (or portion thereof): (i) with respect to the Thunder Bay Owners, clause (A) of the definition of the Thunder Bay Funding Rate; and (ii) with respect to any other Owner that becomes a party to this Agreement from time to time, the amount specified in the related joinder agreement or Transfer Supplement(s).
Commitment shall mean, with respect to an Ownership Group or Committed Purchaser on any date, the amount specified for such Ownership Group or Committed Purchaser on Schedule I hereto, as the same may be adjusted from time to time pursuant to Section 2.2 of this Agreement or pursuant to Transfer Supplement(s) executed by such Owner and its Assignee(s) and delivered pursuant to Section 6.1 of this Agreement.
Committed Percentage shall mean, for each Committed Purchaser within any Ownership Group, with respect to any date of determination, a fraction (expressed as a percentage) having as its numerator the Commitment of such Committed Purchaser as of such date and as its denominator the sum of the Commitments of all Committed Purchasers within the related Ownership Group as of such date.
Committed Purchaser shall mean, with respect to each Ownership Group, each financial institution identified as a Committed Purchaser for such Ownership Group on Schedule I hereto or in the applicable Transfer Supplement with respect to such Ownership Group pursuant to which such financial institution becomes a Committed Purchaser party hereto.
Conduit Purchaser shall mean, with respect to each Ownership Group, each multi-seller, asset-backed commercial paper conduit, if any, identified as a Conduit Purchaser
for such Ownership Group on Schedule I hereto or in the applicable Transfer Supplement with respect to such Ownership Group pursuant to which such multi-seller, asset-backed commercial paper conduit or RIC becomes a Conduit Purchaser party hereto.
Conduit Support Document shall mean, with respect to any Conduit Purchaser, any agreement entered into by the applicable Conduit Support Provider providing for the issuance of one or more letters of credit for the account of such Conduit Purchaser, the issuance of one or more surety bonds for which such Conduit Purchaser is obligated to reimburse the applicable Conduit Support Provider for any drawings thereunder, the sale by such Conduit Purchaser to any Conduit Support Provider of a Series 2017-VFN Note (or any portion thereof) and/or the making of loans and/or other extensions of credit to such Conduit Purchaser in connection with such Conduit Purchasers securitization program (whether for liquidity or credit enhancement support), together with any letter of credit, surety bond or other instrument issued thereunder, including, without limitation of the foregoing, a liquidity asset purchase agreement related to the Series 2017-VFN Note.
Conduit Support Provider shall mean, with respect to any Conduit Purchaser, any Person now or hereafter extending credit, or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Purchaser or issuing a letter of credit, surety bond or other instrument to support any obligations arising under or in connection with such Conduit Purchasers securitization program.
Conduit Trustee means, with respect to each Conduit Purchaser, the trustee or security trustee, if any, appointed under the program documents of such Conduit Purchaser, for the benefit of the holders of its Commercial Paper Notes.
Confidential Information shall mean any and all materials and information concerning USCC, the Transferor or the Issuer and their subsidiaries and Affiliates, and their business, which information is non-public, confidential or proprietary in nature, and shall include, without limitation, (i) information transmitted in written, oral, magnetic or any other medium, (ii) all copies and reproductions, in whole or in part, of such information and (iii) all summaries, analyses, compilations, studies, notes or other records which contain, reflect, or are generated from such information; provided, that Confidential Information does not include, with respect to a Person, information that: (a) is or becomes generally available to the public other than as a result of an action by the Administrative Agent, the Managing Agents or any Owner or their representatives or (b) becomes available to the Administrative Agent, any Managing Agent or any Owner on a non-confidential basis from a person other than USCC and/or any one or more of its subsidiaries or Affiliates who is not, to the knowledge of the Administrative Agent, any Managing Agent or any Owner, otherwise bound by a confidentiality agreement with USCC and/or any one or more of its subsidiaries or Affiliates, or is not, to the knowledge of the Administrative Agent, any Managing Agent or any Owner, otherwise prohibited from transmitting the information to the Administrative Agent, any Managing Agent or any Owner.
Day Count Fraction shall mean, as to any Ownership Tranche for any Tranche Period, a fraction (a) the numerator of which is the number of days in that Tranche Period (or, if less, the number of days during that Tranche Period in the related Interest Period during which that Ownership Tranche was outstanding, including the first, but excluding the last, such day)
and (b) the denominator of which is 360 (unless the applicable funding rate for the related Ownership Group is calculated using the Prime Rate or the Federal Funds Effective Rate, in which case the denominator is the actual number of days in the related calendar year).
Default Rate shall mean 2.00% per annum.
Delayed Funding Amount shall have the meaning specified in Section 2.1(h) of this Agreement.
Delayed Funding Date shall mean, with respect to a Funding Notice, the thirty-fifth (35th) day following the related Increase Date requested in such Funding Notice (or if such day is not a Business Day, then the next succeeding Business Day).
Delayed Funding Notice shall have the meaning specified in Section 2.1(g) of this Agreement.
Delayed Funding Ownership Group shall mean each Ownership Group that is identified on Schedule I hereto as a Delayed Funding Ownership Group, as the same may be amended from time to time with the consent of the affected Ownership Group and the Servicer.
Eligible Cap Counterparty shall mean (i) a Person with commercial paper or short-term deposit ratings which are equal to A-1 or higher by S&P and P-1 by Moodys on such date, (ii) if a Person does not have a commercial paper or short-term deposit rating on such date, such Person has unsecured debt obligations which are rated at least A- by S&P and A3 by Moodys, and (iii) in the case of either (i) or (ii), such Person is not on negative watch for downgrade.
Eligible Interest Rate Cap shall mean an interest rate cap agreement in substantively the form of Exhibit F attached hereto, entered into between the Issuer and an Eligible Cap Counterparty for the benefit of the Owners, as the same may be modified, supplemented, amended or amended and restated from time to time in accordance with the terms thereof.
ERISA Event shall mean any one or more of the following: (a) any reportable event, as defined in Section 4043 of ERISA, with respect to a Plan, as to which the PBGC has not waived under PBGC Regulation Section 4043 the requirement of Section 4043(a) of ERISA that it be notified of such event; (b) the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan or the termination of any Plan under Section 4041(c) of ERISA; (c) the institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (d) the failure to make a required contribution to any Plan that would result in the imposition of a lien or other encumbrance or the provision of security under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance; there being or arising any unpaid minimum required contribution or accumulated funding deficiency (as defined or otherwise set forth in Section 4971 of the Code or Title I of ERISA),
whether or not waived; or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Plan or Multiemployer Plan, or that such filing may be made; or a determination that any Plan is, or is expected to be, considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA, or that any Multiemployer Plan is, or is expected to be, considered a plan in endangered or critical status within the meaning of Sections 431 and 432 of the Code or Sections 304 and 305 of ERISA; (e) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Plan; (f) the complete or partial withdrawal of any member of the ERISA Group from a Multiemployer Plan, the insolvency under Title IV of ERISA of any Multiemployer Plan; or the receipt by any member of the ERISA Group, of any notice, or the receipt by any Multiemployer Plan from any member of the ERISA Group of any notice, that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (g) any member of the ERISA Group incurring any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (h) any member of the ERISA Group ceasing operations at a facility so as to become subject to the provisions of Section 4068(a) of ERISA, withdrawing as a substantial employer so as to become subject to the provisions of Section 4063 of ERISA or cease making contributions to any Plan subject to Section 4064(a) of ERISA to which it made contributions; or (h) any member of the ERISA Group incurring any liability under Section 4069 or 4212(c) of ERISA.
ERISA Group shall mean any entity, including the Issuer and the Performance Guarantor, that is a member of any group of organizations (i) described in Section 414(b) or (c) of the Code of which the Issuer or the Performance Guarantor is a member, or (ii) solely for the purposes of Section 302 of ERISA and Section 412 of the Code, described in Section 414(m) or (o) of the Code of which the Issuer or the Performance Guarantor is a member.
Eurodollar Rate shall mean, with respect any Interest Period or portion thereof, a rate per annum equal to the quotient (expressed as a percentage and rounded upwards, if necessary, to the nearest 1/16 of 1%) (i) with respect to the Ownership Group consisting of the TD Bank Owners, obtained by dividing (x) 3MLIBOR for such Interest Period by (y) 100% minus the LIBOR Reserve Percentage for such Interest Period, if any, or (ii) for any other Ownership Groups, obtained by dividing (x) LIBOR for such Interest Period by (y) 100% minus the LIBOR Reserve Percentage for such Interest Period, if any.
Excluded Taxes shall have the meaning specified in Section 2.5(a) of this Agreement.
Existing Scheduled Commitment Termination shall have the meaning specified in Section 2.2(c) of this Agreement.
Facility Limit shall mean, on any date of determination, the sum of the Commitments on such date.
FATCA shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code
(or any amended or successor version as described above), any intergovernmental agreement entered into in connection with such sections of the Code and any legislation, law, regulation or practice enacted or promulgated pursuant to such intergovernmental agreement.
Federal Funds Effective Rate shall mean, on any day with respect to any Ownership Group, the rate equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the related Managing Agent from three federal funds brokers of recognized standing selected by such Managing Agent.
Fee Letters shall mean, collectively, each agreement between the Transferor and a Managing Agent setting forth certain fees and expenses payable to such Managing Agent (for the benefit of its respective related Owners) by the Transferor in connection with the Series 2017-VFN Notes, as the same may be amended, restated, supplemented or otherwise modified from time to time.
Funding Date shall mean the Initial Addition Date and each Increase Date.
Funding Notice shall mean a notice substantially in the form of Exhibit B hereto delivered by the Issuer to the Administrative Agent and each Managing Agent pursuant to Section 2.1 of this Agreement.
Governmental Actions shall mean any and all consents, approvals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Governmental Rules.
Governmental Rules shall mean any and all laws, statutes, codes, rules, regulations, ordinances, orders, writs, decrees and injunctions, of any Governmental Authority and any and all legally binding conditions, standards, prohibitions, requirements and judgments of any Governmental Authority.
Hedging Requirements shall mean the requirements contained in Exhibit G.
ICE shall mean the ICE Benchmark Administration.
Increase Date shall mean each date on which the Issuer requests that the Owners fund Note Principal Balance Increases to the Issuer pursuant to Section 2.1(e) of this Agreement.
Indemnified Amounts shall have the meaning specified in Section 2.6(a) of this Agreement.
Indemnified Party shall have the meaning specified in Section 2.6(a) of this Agreement.
Indenture Trustee shall have the meaning specified in the recitals to this Agreement.
Initial Note Principal Balance shall mean, with respect to a Series 2017-VFN Note, the aggregate outstanding principal amount of such Series 2017-VFN Note on the Initial Closing Date after giving effect to any increase on such date, if any.
Inspection shall have the meaning specified in Section 4.7(f) of this Agreement.
Investing Office shall mean initially, the office of any Owner (if any) designated as such in the Transfer Supplement by which it became a party to this Agreement, and thereafter, such other office of such Owner or such Assignee as may be designated in writing to the applicable Managing Agent, the Administrative Agent, the Issuer, the Servicer and the Indenture Trustee by such Owner or Assignee.
Investment Letter shall mean a letter executed by each Owner substantially in the form of Exhibit D hereto.
LIBOR shall mean, with respect to any day during any Interest Period, a rate determined at approximately 11:00 a.m. (London time) two London Business Days prior to the first day of such Interest Period, equal to the interest rate per annum designated as LIBOR for the related Managing Agent (or its Affiliate) appearing on Reuters Screen LIBOR01 page on the Reuters Service (or such other page as may replace the LIBOR01 page on that service or such other service as may be nominated by ICE (or the successor thereto if ICE is no longer making LIBOR available), in each case, for the purpose of displaying London interbank offered rates of major banks) as the rate for U.S. Dollar deposits for a period comparable to such Interest Period and in an amount comparable to the applicable portion of the Note Principal Balance to accrue interest by reference to such interest rate. In the event no rate is so posted, LIBOR shall mean the arithmetic average (rounded up to only four decimal places) of the rates per annum offered to the principal London office of the related Managing Agent (or if any Managing Agent does not maintain a London office, the principal London office of an Affiliate of such Managing Agent) by three (3) London banks, selected by the Managing Agent in good faith, for U.S. Dollar deposits for a period comparable to such Interest Period and in an amount comparable to the applicable portion of the Note Principal Balance to accrue interest by reference to such interest rate. If fewer than three (3) quotations are provided as requested, the rate for that Interest Period will be the arithmetic mean of the three (3) rates quoted by major banks selected by the related Managing Agent in good faith in New York City for loans in United States dollars to leading European banks for a period comparable to such Interest Period, such mean to be calculated by the Indenture Trustee at approximately 11:00 a.m., New York City time, on that day. For the avoidance of doubt, the Indenture Trustee shall have no obligation to determine any alternative index if LIBOR is not available at the time any such calculation is to be made.
LIBOR Reserve Percentage shall mean, for any portion of the Note Principal Balance to accrue interest by reference to the Eurodollar Rate and any Interest Period therefor, the maximum reserve percentage, if any, applicable to the related Owner under Regulation D during such Interest Period (or if more than one percentage shall be applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage
shall be applicable) for determining such Owners reserve requirement (including any marginal, supplemental or emergency reserves) with respect to liabilities or assets having a term comparable to such interest period consisting or included in the computation of Eurocurrency Liabilities (as defined in Regulation D). Without limiting the effect of the foregoing, but without duplicating the provisions of Section 2.4, the LIBOR Reserve Percentage shall reflect any other reserves required to be maintained by an Owner by reason of any Regulatory Change, in which such relevant rule, guideline or directive was adopted, changed or reinterpreted after the Initial Closing Date, against (a) any category of liabilities which includes deposits by reference to which LIBOR or 3MLIBOR, as applicable, is to be determined or (b) any category of extensions of credit or other assets which include credits or assets based on LIBOR or 3MLIBOR, as applicable.
Liquidity Funding Rate shall mean for any applicable portion of the Note Principal Balance and Interest Period and the applicable Managing Agent and its related Ownership Group, an interest rate per annum equal to the greater of (I) the sum of (A) the Federal Funds Effective Rate for each day in such Interest Period plus (B) 0.50% plus (C) the Program Fee Rate, and (II) the applicable Prime Rate plus the Program Fee Rate for each day in such Interest Period.
London Business Day shall mean any business day on which dealings in deposits in United States dollars are transacted in the London interbank market.
Managing Agent shall mean, with respect to any Ownership Group, the Person so designated on Schedule I hereto or in the applicable Transfer Supplement with respect to such Ownership Group.
Material Adverse Effect shall mean a material adverse effect on (i) the financial condition or operations of USCC, the Transferor, the Issuer, or the Performance Guarantor, as applicable, together with its respective subsidiaries (in each case taken as a whole), (ii) the ability of any of USCC, the Transferor, the Issuer or the Performance Guarantor to perform its respective obligations under any Transaction Document, (iii) the legality, validity or enforceability of any Transaction Document, (iv) the rights or interests of the Indenture Trustee or the Noteholders hereunder or with respect to the Collateral or (v) the collectability of the Receivables generally or any material portion thereof.
Monthly Additional Interest shall have the meaning specified in Section 2.3(a).
Monthly Interest shall have the meaning specified in Section 2.3(a).
Monthly Interest Shortfall shall have the meaning specified in Section 2.3(a).
Multiemployer Plan shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding five years contributed to by any member of the ERISA Group on behalf of its employees and which is covered by Title IV of ERISA.
Non-Delaying Ownership Group shall have the meaning specified in Section 2.1(h) of this Agreement.
Non-Renewing Ownership Group shall have the meaning specified in Section 2.2(d) of this Agreement.
Note Principal Balance shall have the meaning specified in the Series 2017-VFN Supplement.
Note Principal Balance Increase shall mean any increase in the Note Principal Balance of any Series 2017-VFN Note pursuant to Section 2.1 of this Agreement.
Note Principal Balance Reduction shall mean any reduction of the Note Principal Balance of any Series 2017-VFN Note pursuant to Section 2.1(i) of this Agreement.
Note Rate shall mean, with respect to each Owner, any Series 2017-VFN Note and any Interest Period or portion thereof, a rate of interest equal to the Thunder Bay Funding Rate (with respect to Thunder Bay) or the TD Bank Funding Rate (with respect to TD Bank, as applicable, or the applicable rate of interest specified in the related joinder agreement or Transfer Supplement(s) to which any other Owner becomes a party to this Agreement.
OFAC shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.
Owner Trustee shall mean Wilmington Trust, National Association, a national banking association, not in its individual capacity, but solely as owner trustee of the Issuer.
Owners Percentage shall mean, at any time with respect to any Owner in an Ownership Group, the percentage equivalent of a fraction, the numerator of which is the principal amount of a Series 2017-VFN Note that such Owner is committed to fund at such time and the denominator of which is the Commitment of such Ownership Group at such time.
Owners shall mean the Managing Agents, the Conduit Purchasers, the Committed Purchasers, the Conduit Support Providers and all other owners by assignment or otherwise of all or any portion of a Series 2017-VFN Note (or any interest therein).
Ownership Group shall mean each separate group identified from time to time on Schedule I hereto consisting of a Managing Agent, one or more Conduit Purchasers administered by such Managing Agent (if applicable), one or more related Committed Purchasers and each other related Owner. The Managing Agent, Conduit Purchasers, Committed Purchasers and the other Owners identified on Schedule I as belonging to the same Ownership Group, together with all other owners by assignment or otherwise of all or any portion of a Series 2017-VFN Note (or any interest therein), shall be deemed to be related hereunder.
Ownership Group Share shall mean, for an Ownership Group at any time of determination, a fraction (expressed as a percentage) having the Commitment for such Ownership Group as its numerator and the VFN Maximum Principal Amount as its denominator; provided, however, that if any Owner fails to fund any amount as required hereunder, Ownership Group Share shall mean, for an Ownership Group, for purposes of making all distributions hereunder, a fraction (expressed as a percentage) having the portion of the Note
Principal Balance of the Series 2017-VFN Note funded by the Owners of such Ownership Group as its numerator and the Note Principal Balance as its denominator.
Ownership Tranche shall mean each of the ownership tranches into which the Series 2017-VFN Notes may be divided from time to time, which shall be identical in all respects, except for their respective Commitments and principal amounts funded in respect of such tranches, and certain matters relating to the rate and payment of interest applicable to each Ownership Tranche. The initial allocation of Series 2017-VFN Notes among Ownership Tranches and any modifications thereto shall be made as provided in Sections 2.1(a) and 2.2, as applicable, of this Agreement.
Participant shall have the meaning specified in Section 6.1(d) of this Agreement.
Participation shall have the meaning specified in Section 6.1(d) of the Agreement.
Percentage Interest shall mean, for an Owner with respect to any date of determination, the percentage equivalent of (a) the sum of (i) the portion of the Initial Note Principal Balance (if any) funded by such Owner, plus (ii) the aggregate amount of Note Principal Balance Increases (if any) funded by such Owner after the Initial Closing Date but prior to such day pursuant to Section 2.1 of this Agreement, plus (iii) any portion of the Note Principal Balance acquired by such Owner as an Assignee from another Owner pursuant to a Transfer Supplement executed and delivered pursuant to Section 6.1 of this Agreement, minus (iv) the aggregate amount of principal payments received by such Owner in respect of its interest in a Series 2017-VFN Note prior to such day, minus (v) any portion of the Note Principal Balance assigned by such Owner to an Assignee pursuant to a Transfer Supplement executed and delivered pursuant to Section 6.1 of this Agreement, divided by (b) the Note Principal Balance on such day.
Performance Guarantor shall have the meaning specified in the preamble to this Agreement.
Permitted Transferee shall mean each initial Owner, each Managing Agent (in its individual capacity), the Administrative Agent (in its individual capacity), any asset backed commercial paper conduit whose Commercial Paper Notes are rated in the highest available short-term rating from at least two (2) Rating Agencies, that is administered by the Administrative Agent, a Managing Agent or any Affiliate thereof, any Support Party, any Collateral Agent or Conduit Trustee for any Conduit Purchasers commercial paper program to secure obligations of such Conduit Purchaser, and any other Person who has been consented to as a potential Transferee by the Issuer (which consent shall not be unreasonably withheld, delayed or conditioned); provided, that after an Amortization Event or an Event of Default occurs and is continuing, a Permitted Transferee shall mean any Person, and the consent of the Issuer shall not be required for any transferee.
Plan means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (a) maintained or contributed to by any member of the ERISA Group for any of its employees or (b) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.
Prime Rate shall mean, for any day, the rate of interest publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City.
Program Fee Rate shall mean, with respect to any Ownership Group, any Series 2017-VFN Note and any Interest Period, the rate specified as the Program Fee Rate in the applicable Fee Letter for such Ownership Group.
Purchased Assets shall have the meaning specified in the Receivables Purchase Agreement.
RBC shall have the meaning specified in the preamble to this Agreement.
RBC Roles shall have the meaning specified in Section 7.17 of this Agreement.
Regulation D shall mean Regulation D of the Board of Governors of the Federal Reserve System.
Regulatory Change shall mean (i) the adoption after the date hereof of any applicable law, rule or regulation (including any applicable law, rule or regulation regarding capital adequacy or liquidity coverage), or any change therein, by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, after the date hereof, (ii) any change after the date hereof in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law) issued after the date hereof by any such authority, central bank or comparable agency, or (iii) the compliance, whether commenced prior to or after the date hereof, by any Owner, Participant or Support Party with the requirements of (a) the final rule titled Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues, adopted by the United States bank regulatory agencies on December 15, 2009 (the FAS 166/167 Capital Guidelines), or (b) the Dodd-Frank Wall Street Reform and Consumer Protection Act, or (c) any existing or future rules, regulations, guidance, interpretations or directives from the U.S. bank regulatory agencies relating to the FAS 166/167 Capital Guidelines or the Dodd-Frank Wall Street Reform and Consumer Protection Act (whether or not having the force of law), or (d) the rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case relating to the international regulatory framework for banking capital and liquidity measurements, standards and monitoring known collectively as Basel III, regardless of the date when enacted, adopted, issued or implemented.
Restricted Person shall have the meaning specified in Section 7.14(c) of this Agreement.
RIC shall mean a receivables investment company or asset-backed commercial paper conduit administered by a Managing Agent or an Affiliate thereof which obtains funding from the issuance of Commercial Paper Notes or other notes.
Sanctioned Country shall mean, at any time, a country or territory which is the subject or target of any Sanctions, including, without limitation, as of the date hereof, Cuba, Crimea (Ukraine), Iran, Sudan, Syria and North Korea.
Sanctioned Person shall mean, at any time, (a) any Person currently the subject or the target of any Sanctions, including any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, available at: http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise published from time to time, (b)(i) an agency of the government of a Sanctioned Country, (ii) an organization controlled by a Sanctioned Country, or (iii) any Person operating, organized or resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC, or (c) any Person controlled by any such Person.
Sanctions shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time (a) by the U.S. government, including those administered by OFAC, the U.S. State Department, the U.S. Department of Commerce or the U.S. Department of the Treasury, (b) by the United Nations Security Council, the European Union or Her Majestys Treasury of the United Kingdom or (c) by other relevant sanctions authorities to the extent compliance with the sanctions imposed by such other authorities would not entail a violation of applicable law.
Scheduled Commitment Termination Date shall mean December 13, 2019, as such date may be extended from time to time pursuant to Section 2.2(c).
Sellers Interest Retention Requirements shall mean the Transferors obligations pursuant to Section 4.04 of the Transfer and Servicing Agreement and the Performance Guarantors representations and warranties under Section 4(k) of the Performance Guaranty.
Series 2017-VFN Controlling Holders shall mean with respect to the Series 2017-VFN Notes and at any time of determination, the Holders of 100% of the Outstanding Amount of Series 2017-VFN Notes.
Series 2017-VFN Supplement shall have the meaning specified in the recitals to this Agreement.
Servicer shall have the meaning specified in the preamble to this Agreement.
Specified Tax Changes shall have the meaning specified in Section 2.5(a) of this Agreement.
Supplemental Advance Notice shall have the meaning specified in Section 2.1(h) of this Agreement.
Support Advances shall mean any loans or advances, or any participation or other interest, funded or held by a Support Party pursuant to a Support Facility (but excluding any such loans or advances made to fund the applicable Conduit Purchasers obligations to pay interest, fees or other similar amounts relating to the funding of its making or maintaining its interest in a Series 2017-VFN Note).
Support Facility shall mean any liquidity or credit support agreement in favor a Conduit Purchaser which relates to this Agreement, the Series 2017-VFN Note held by the Ownership Group of which such Conduit Purchaser is a member and the other Transaction Documents (including any agreement to purchase an assignment of or participation in, or to extend a liquidity loan with respect to, such Conduit Purchasers interest in such Series 2017-VFN Note).
Support Party shall mean any bank, insurance company or other financial institution extending or having a commitment or option to extend funds to or for the account of a Conduit Purchaser (including by agreement to purchase an assignment of, or participation in, the Series 2017-VFN Note held by the Ownership Group of which such Conduit Purchaser is a member) under a Support Facility. Each Committed Purchaser shall be deemed to be a Support Party for the Conduit Purchaser(s) in the related Ownership Group.
Taxes shall have the meaning specified in Section 2.5(a) of this Agreement.
TD Bank shall mean The Toronto-Dominion Bank, a Schedule I bank organized under the federal laws of Canada.
TD Bank Funding Rate shall mean with respect to any Interest Period the sum of (i) the weighted average daily Eurodollar Rate for deposits in dollars as reported on the related Reuters Screen or on any successor or substitute page of such service, or any successor or substitute for such service, for the purpose of displaying offered rates of leading banks for London interbank deposits in United States dollars on each day during the Interest Period, or if such day is not a Business Day, then the immediately preceding Business Day in each case, changing when and as such rate changes; and (ii) the Program Fee Rate; provided, however, that during the Amortization Period, the TD Bank Funding Rate shall be the rate determined pursuant to the paragraph above plus the Amortization Rate; provided further, that if an Event of Default has occurred and is continuing, then the TD Bank Funding Rate shall be the rate determined pursuant to the first sentence of this definition above plus the sum of (1) the Amortization Rate and (2) the Default Rate. Notwithstanding anything in this definition to the contrary, in no event shall the Eurodollar Rate be less than zero for purposes of this Agreement or any other Transaction Document.
TD Bank Managing Agent shall mean the Managing Agent for the TD Bank Owners identified on the signature pages hereto, together with its successors and assigns.
TD Bank Note shall mean the Series 2017-VFN Note representing the Ownership Tranche of the Series 2017-VFN Notes funded from time to time by the TD Bank Managing Agent for the benefit of the applicable TD Bank Owners pursuant to this Agreement.
TD Bank Owners shall mean the TD Bank Managing Agent, TD Bank, each assignee of TD Bank which is a RIC and any assignee thereof chosen by the TD Bank Managing Agent with the consent of the Transferor, which consent shall not be unreasonably withheld.
Termination Date shall mean the earliest to occur of (i) the Scheduled Commitment Termination Date, (ii) the date on which an Amortization Event occurs with respect to Series 2017-VFN and (iii) the date on which an Event of Default occurs (or, to the extent required, is declared).
Thunder Bay shall mean Thunder Bay Funding, LLC, a Delaware limited liability company, together with its successors and assigns.
Thunder Bay Funding Rate shall mean:
(A) with respect to any Interest Period, to the extent any Thunder Bay Purchaser (or a RIC which is an assignee of Thunder Bay) is funding the Thunder Bay Tranche during such Interest Period through the issuance of commercial paper, the sum of (i)(x) unless the Thunder Bay Managing Agent has determined that the Thunder Bay Pooled CP Rate shall be applicable, a rate per annum equal to the rate per annum calculated by the Thunder Bay Managing Agent to reflect Thunder Bays (or such RICs) cost of funding such Ownership Tranche, taking into account the weighted daily average interest rate payable in respect of such commercial paper notes during such period (determined in the case of discount commercial paper notes by converting the discount to an interest bearing equivalent rate per annum), applicable placement fees and commissions, and such other costs and expenses as the Thunder Bay Managing Agent in good faith deems appropriate, or (y) to the extent the Thunder Bay Managing Agent has determined that the Thunder Bay Pooled CP Rate shall be applicable, the Thunder Bay Pooled CP Rate and (ii) the Program Fee Rate; provided, however, that if any component of the rate determined pursuant to this clause (A) is a discount rate, in calculating the Thunder Bay Funding Rate for such Interest Period the Thunder Bay Managing Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum; or
(B) to the extent that Thunder Bay or any other Owner that is a member of its related Ownership Group is funding or maintaining any Series 2017-VFN Notes (or portion thereof) other than through the issuance of Commercial Paper Notes, a rate equal to the Liquidity Funding Rate for such Interest Period or portion thereof;
provided, however, that during the Amortization Period, the Thunder Bay Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the Amortization Rate; provided further, that if an Event of Default has occurred and is continuing,
then the Thunder Bay Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the sum of (1) the Amortization Rate and (2) the Default Rate.
Thunder Bay Liquidity Asset Purchase Agreement shall mean the liquidity asset purchase agreement dated as of the date hereof among Thunder Bay, the Thunder Bay Managing Agent and each of the Thunder Bay Purchasers signatory thereto, as the same may from time to time be amended, restated, supplemented or otherwise modified.
Thunder Bay Managing Agent shall mean the Managing Agent for the Thunder Bay Owners identified on the signature pages hereto, together with its successors and assigns.
Thunder Bay Note shall mean the Series 2017-VFN Note representing the Ownership Tranche of the Series 2017-VFN Notes funded from time to time by the Thunder Bay Managing Agent for the benefit of the applicable Thunder Bay Owners pursuant to this Agreement.
Thunder Bay Owners shall mean the Thunder Bay Managing Agent, Thunder Bay, each assignee of Thunder Bay which is a RIC and the Thunder Bay Purchasers and any assignee thereof chosen by the Thunder Bay Managing Agent with the consent of the Transferor, which consent shall not be unreasonably withheld.
Thunder Bay Pooled CP Rate shall mean, for any day during any Interest Period, the per annum rate equivalent to the weighted average of the per annum rates paid or payable by Thunder Bay from time to time as interest on or otherwise (by means of interest rate hedges or otherwise taking into consideration any incremental carrying costs associated with short-term promissory notes issued by Thunder Bay maturing on dates other than those certain dates on which Thunder Bay is to receive funds) in respect of the promissory notes issued by Thunder Bay that are allocated, in whole or in part, by the Managing Agent (on behalf of Thunder Bay) to fund or maintain any Series 2017-VFN Notes during such period, as determined by the Managing Agent (on behalf of Thunder Bay) and reported to the Transferor, which rates shall reflect and give effect to (1) the commissions of placement agents and dealers in respect of such promissory notes, to the extent such commissions are allocated, in whole or in part, to such promissory notes by the Managing Agent (on behalf of Thunder Bay) and (2) other borrowings by Thunder Bay, including, without limitation, borrowings to fund small or odd dollar amounts that are not easily accommodated in the commercial paper market; provided, however, that if any component of such rate is a discount rate, in calculating the Thunder Bay Pooled CP Rate, the Managing Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.
Thunder Bay Purchasers shall mean each of the purchasers party to the Thunder Bay Liquidity Asset Purchase Agreement and any other Conduit Support Provider related to Thunder Bay.
Thunder Bay Tranche shall mean the Ownership Tranche funded from time to time by the Thunder Bay Managing Agent for the benefit of the applicable Thunder Bay Owners pursuant to this Agreement.
Tranche Initial Invested Amount shall mean, with respect to any Series 2017-VFN Note and any Ownership Tranche, the initial outstanding principal amount of such Series 2017-VFN Note for such Ownership Tranche as of the Initial Closing Date, in each case as set forth in Schedule I hereto.
Tranche Invested Amount shall mean, at any time as to any Series 2017-VFN Note and any Ownership Tranche, that portion of the Note Principal Balance allocated to the Series 2017-VFN Note representing that Ownership Tranche.
Tranche Period shall mean a specified period during which an Ownership Tranche will accrue interest by reference to a component of a Note Rate, including the Eurodollar Rate, the Prime Rate or a Federal Funds Effective Rate.
Transaction shall have the meaning specified in Section 7.3(b) of this Agreement.
Transfer shall have the meaning specified in Section 6.1(c) of this Agreement.
Transfer Supplement shall have the meaning specified in Section 6.1(e) of this Agreement.
Transferee shall have the meaning specified in Section 6.1(c) of this Agreement.
Upfront Fee with respect to any Ownership Group, shall have the meaning specified in the applicable Fee Letter.
USCC shall have the meaning specified in the preamble to this Agreement.
USCC Services shall have the meaning specified in the preamble to this Agreement.
VFN Maximum Principal Amount shall mean, with respect to any date of determination, the Facility Limit on such date.
VFN Maximum Principal Amount Increase Notice shall have the meaning specified in Section 2.2(b).
VFN Non-Use Fee shall have the meaning specified in Section 2.3(c).
VFN Non-Use Fee Rate shall mean, with respect to any Ownership Group, any Series 2017-VFN Note and any Interest Period, the per annum rate specified as such in the applicable Fee Letter for such Ownership Group.
Volcker Rule shall have the meaning specified in Section 4.1(i) of this Agreement.
written or in writing (and other variations thereof) shall mean any form of written communication or a communication by means of facsimile or electronic mail.
SECTION 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings as set forth herein when used in any certificate or other document made or delivered pursuant hereto.
(b) The words hereof, herein, and hereunder and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and Section, subsection and Exhibit references are to this Agreement, unless otherwise specified. The words including and include shall be deemed to be followed by the words without limitation.
ARTICLE II
TERMS OF THE SERIES 2017-VFN NOTES
SECTION 2.1 Issuance of Series 2017-VFN Notes; Note Principal Balance Increases; Note Principal Balance Reductions.
(a) On the terms and subject to the conditions set forth in this Agreement, the Series 2017-VFN Supplement and the other Transaction Documents, and in reliance on the covenants, representations, warranties and agreements set forth herein and therein, as applicable, the Issuer has offered to each Managing Agent, on behalf of its respective Ownership Group, and each Managing Agent, on behalf of its respective Ownership Group, has elected to fund a variable funding loan evidenced by the Series 2017-VFN Notes in the Tranche Initial Invested Amount set forth in Schedule I hereto for the related Ownership Tranche. Without limiting any other provision of this Agreement, the obligation of any Owner to fund an interest in a Series 2017-VFN Note is subject to the satisfaction of the conditions precedent set forth in Section 3.1 hereof.
(b) On the terms and subject to the conditions set forth in this Agreement, and in reliance upon the covenants, representations, warranties and agreements herein set forth, if any Conduit Purchaser chooses not to fund (through its related Managing Agent) the initial advance under a Series 2017-VFN Note or the related Ownership Group does not include a Conduit Purchaser, the related Committed Purchaser(s) shall fund (through the related Managing Agent) on the Initial Closing Date such Series 2017-VFN Note in the Tranche Initial Invested Amount for the related Ownership Tranche allocated among the Committed Purchasers in such Ownership Group in accordance with their respective Owners Percentages if there is more than one Committed Purchaser in the related Ownership Group; provided, that it is expected that there will be no funding on the Initial Closing Date and the first increase in the Note Principal Balance is expected to occur on the Initial Addition Date.
(c) On the Initial Closing Date, the Transferor will cause the Issuer to deliver to each Managing Agent, on behalf of the Owners in its Ownership Group, a Series 2017-VFN Note, dated as of the Initial Closing Date, registered in the name of such Managing Agent having a face amount equal to the Commitment of its Ownership Group, and duly authenticated by the
Indenture Trustee in accordance with the provisions of the Indenture against delivery by such Managing Agent, on behalf of the Owners in the related Ownership Group, to the Issuer of such Ownership Groups Ownership Group Share of the Initial Note Principal Balance.
(d) Each Series 2017-VFN Note is to be funded at a price equal to 100% of its respective Tranche Initial Invested Amount.
(e) Subject to the terms and conditions set forth in this Agreement and the Transaction Documents, on any Business Day during the Revolving Period, the Issuer may in its discretion request a Note Principal Balance Increase from the Owners by delivering to each Managing Agent and the Administrative Agent, a Funding Notice by 12:00 p.m. New York City time at least three (3) Business Days prior to the applicable requested Increase Date, provided, that as of the applicable Funding Date, each of the following conditions is satisfied:
(i) after giving effect to such Note Principal Balance Increase, (A) the Note Principal Balance shall not exceed the VFN Maximum Principal Amount at such time; (B) the Ownership Group Share of the Note Principal Balance funded by each Ownership Group shall not exceed its respective Commitment; and (C) the portion of the Note Principal Balance funded by any Committed Purchaser shall not exceed its Adjusted Commitment;
(ii) the Funding Notice shall (x) specify: (A) the proposed date of such Note Principal Balance Increase, which date shall be a Business Day occurring no earlier than the third (3rd) Business Day after the date of such Funding Notice, (B) the amount of such Note Principal Balance Increase (which shall be in a minimum aggregate amount of $1,000,000 or an integral multiple of $100,000 in excess thereof, and (C) the bank account to which the funds from such Note Principal Balance Increase should be sent and (y) have been received by the Managing Agents and the Administrative Agent not later than 12:00 p.m. on the third (3rd) Business Day prior to the proposed date of the requested Note Principal Balance Increases;
(iii) there shall be no more than two (2) requests for Note Principal Balance Increases by the Issuer during any calendar week; and
(iv) each funding of a Note Principal Balance Increase hereunder shall be funded by the Ownership Groups ratably in accordance with the Ownership Group Shares of the amount of the requested Note Principal Balance Increase.
(f) Subject to the terms and conditions set forth in this Agreement (including Section 3.2 hereof) and the other Transaction Documents, on each Funding Date, the Conduit Purchasers in each Ownership Group, acting through the related Managing Agent, may (but are not committed to) at the request of the Issuer pursuant to a Funding Notice, fund such Ownership Groups Ownership Group Share of any requested Note Principal Balance Increase in amounts to be allocated among such Conduit Purchasers by the related Managing Agent. If any Conduit Purchaser chooses at any time not to fund its portion of such Ownership Groups Ownership Group Share of any Note Principal Balance Increase when requested by the Issuer, on the applicable Funding Date, the related Committed Purchasers, acting through the related Managing
Agent, shall, subject to the conditions set forth in Section 3.2 hereof, fund their respective Committed Percentages of such Note Principal Balance Increase. Each funding of an Ownership Groups Ownership Group Share of Note Principal Balance Increase shall be paid by the related Owners to an account designated by the related Managing Agent. Each funding of a Note Principal Balance Increase by the Owners hereunder shall represent an increase in the Note Principal Balance by an equal amount. Each Managing Agent shall provide prompt notice to the Issuer and each other Managing Agent if any Conduit Purchaser in its Ownership Group elects not to fund its Ownership Groups Ownership Group Share of any requested Note Principal Balance Increase.
(g) Amounts due in respect of each Note Principal Balance Increase (including any Note Principal Balance Increase on the Initial Closing Date, if applicable) shall be transmitted by the respective Managing Agents for payment not later than 1:00 p.m. New York City time on the applicable Increase Date by wire transfer of immediately available funds to the Transferors account no. 8188595363 maintained at Bank of America (ABA #026009593) (or such other account as may from time to time be specified by the Issuer in a notice to the applicable Managing Agent); provided, however, that notwithstanding anything to the contrary herein, at any time after the Issuer delivers a Funding Notice pursuant to this Section 2.1, a Managing Agent that is part of a Delayed Funding Ownership Group may notify the Issuer in writing, not later than 10:00 a.m. New York City time on the Business Day immediately preceding the proposed Increase Date (a Delayed Funding Notice), of its intention to fund all or any portion of the amount of the related Note Principal Balance Increase on a date that is on or before the Delayed Funding Date with respect to such Funding Notice rather than on the requested Increase Date. In the event a Managing Agent delivers the notice described in the preceding sentence, the Issuer may at any time without penalty revoke, in whole or in part, the Note Principal Balance Increase set forth in the related Funding Notice.
(h) In the event that one or more Delayed Funding Ownership Groups timely delivers a Delayed Funding Notice with respect to any portion of the amount of the Note Principal Balance Increase requested on the proposed Increase Date (a Delayed Funding Amount), the Issuer shall promptly notify the Managing Agents of each other Ownership Group that has not given timely notice of a Delayed Funding Amount (each, a Non-Delaying Ownership Group) that the amount of its Note Principal Balance Increase on the related Increase Date is being increased to accommodate a Delayed Funding Amount, which notice shall specify the amount of such increase (such notice, a Supplemental Advance Notice). Each such Non-Delaying Ownership Group shall increase the amount of its respective Note Principal Balance Increase to be made by it on the related Increase Date by the amount specified in the Supplemental Advance Notice, which amounts shall be allocated among each Non-Delaying Ownership Group pro rata based on its respective unused Commitment, up to the Delayed Funding Amount, but not in excess of the unused portion of its respective Commitment. Notwithstanding any other provision to the contrary in any Transaction Documents (including, without limitation, Section 2.1(i) of this Agreement), in the event there is any Note Principal Balance Reduction or other repayment of principal prior to the funding of a Delayed Funding Amount by a Delayed Funding Ownership Group, the amount of such repayment shall be allocated first to the Non-Delaying Ownership Groups that increased the amount funded by them pro rata on the basis of the amount funded by such Non-Delaying Ownership Groups until such amount is repaid in full, and then pro rata among all Ownership Groups to reduce the Note
Principal Balance of the Series 2017-VFN Note held by each Ownership Group, and the amount requested under the applicable Funding Notice and the Delayed Funding Amount for each Delayed Funding Ownership Group shall be deemed to be reduced by the amount of such payment, pro rata on the basis of their respective Delayed Funding Amounts. Upon the funding of any Delayed Funding Amount by a Delayed Funding Ownership Group, such amount shall be allocated and paid by the Issuer to the applicable Non-Delaying Ownership Groups on the Delayed Funding Date on the basis of the amount of the Delayed Funding Amount funded by such Non-Delaying Ownership Groups that remains unpaid (after giving effect to any Note Principal Balance Reductions or other payments of principal during such delayed funding period), until such amount is repaid in full.
(i) Subject to the terms and conditions set forth herein and in the other Transaction Documents, on any Business Day during the Revolving Period, the Issuer shall have the right to reduce the Note Principal Balance (each such reduction, a Note Principal Balance Reduction) by at least $250,000 or an integral multiple of $50,000 in excess thereof; provided, that (i) on such Business Day and immediately after giving effect thereto, no Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default shall exist; (ii) the Issuer shall give prior written notice to the Managing Agents, the Administrative Agent and the Indenture Trustee in respect of such Note Principal Balance Reduction at least three (3) Business Days prior to the date of such proposed Note Principal Balance Reduction; (iii) such Note Principal Balance Reduction shall be applied to reduce the Note Principal Balance of the Series 2017-VFN Note held by each Ownership Group ratably in accordance with its Ownership Group Share and (iv) the Issuer shall pay to the Managing Agents (for the account of the Owners in the related Ownership Group), the amount of any Breakage Costs incurred by the Owners in connection with such Note Principal Balance Reduction in accordance with Section 2.6(e) of this Agreement.
(j) On the Termination Date, the Commitments of all Owners shall automatically, without further action on the part of any Person, terminate.
SECTION 2.2 Reduction, Increase and Extension of Commitments.
(a) The Issuer may at any time, upon at least thirty (30) days prior written notice to each Managing Agent and the Administrative Agent, with a copy to the Indenture Trustee, reduce in part the VFN Maximum Principal Amount or the unused Commitment (but not below the related outstanding Note Principal Balance of the Series 2017-VFN Note for any Ownership Group at such time); provided, however, that each partial reduction shall (i) be in an amount equal to $10,000,000 or any integral multiples of $1,000,000 in excess thereof and (ii) reduce each Commitment hereunder ratably in accordance with the respective Ownership Groups Ownership Group Share of such reduction to the VFN Maximum Principal Amount. Notwithstanding the preceding sentence, the Issuer may at any time terminate in whole the VFN Maximum Principal Amount and the Facility Limit, upon (1) at least ten (10) Business Days prior written notice to each Managing Agent and the Administrative Agent, with a copy to the Indenture Trustee, which notice shall specify the proposed payment date of such termination; and (2) payment in full of (A) the Note Principal Balance of the Series 2017-VFN Notes, (B) any accrued and unpaid Monthly Interest, Breakage Costs, Additional Amounts and VFN Non-Use Fees due to the Series 2017-VFN Noteholders through the date of termination, and (C) payment
in full of any other amounts payable to the Series 2017-VFN Noteholders pursuant to this Agreement or the other Transaction Documents.
(b) The Issuer may, from time to time upon at least thirty (30) days prior written notice to each Managing Agent and the Administrative Agent (or such shorter period as shall be approved by the Administrative Agent and the Managing Agents of the Ownership Groups increasing their commitments), request an increase to the VFN Maximum Principal Amount. Each such notice shall be in a form reasonably acceptable to the Administrative Agent (each a VFN Maximum Principal Amount Increase Notice) and shall specify (i) the proposed date such increase shall become effective, (ii) the proposed amount of such increase, which amount shall be at least $25,000,000 or an integral multiple of $5,000,000 in excess thereof; (iii) the identity of the Ownership Group(s) (and members thereof) whose Commitment(s) will be increased in connection therewith; (iv) the identity of all Owners in such Ownership Group and the amount of their respective Commitments after giving effect to such increase in the VFN Maximum Principal Amount; and (v) a recalculation of the Ownership Group Shares which will become effective upon such increase in the VFN Maximum Principal Amount. No such increase shall become effective unless and until (A) the Commitments of the Owners in one or more existing Ownership Groups have been increased by the amount of such increase in the VFN Maximum Principal Amount (or a portion thereof, if such increase is accomplished by a combination of means pursuant to clause (D) below), as evidenced by an agreement in writing executed by the Issuer, the Servicer, the Committed Purchasers and the Managing Agents for such increasing Ownership Groups, (B) one or more additional Ownership Groups have become parties to this Agreement by executing a joinder agreement in form and substance reasonably acceptable to the Series 2017-VFN Controlling Holders and the Issuer, which new Ownership Groups have Commitments equal to the amount of such increase in the VFN Maximum Principal Amount (or a portion thereof, if such increase is accomplished by a combination of means pursuant to clause (D) below), (C) the available commitments of the Conduit Support Providers hereunder or under the applicable Conduit Support Documents of the applicable Conduit Purchasers are increased as necessary to maintain the then-current ratings of such Conduit Purchasers Commercial Paper Notes, or (D) a combination of the foregoing. Notwithstanding anything to the contrary set forth herein, nothing contained in this Agreement shall constitute a commitment or obligation on the part of any Owner to increase its Commitment hereunder.
(c) The Issuer may, at any time during the period which is no more than sixty (60) days or less than forty-five (45) days immediately preceding the Scheduled Commitment Termination Date (as such Scheduled Commitment Termination Date may have previously been extended pursuant to this Section 2.2), request that the then-applicable Scheduled Commitment Termination Date (the Existing Scheduled Commitment Termination Date) be extended for an additional period of up to 364 days. Any such request shall be in writing and delivered to each Managing Agent, and shall be subject to the following conditions: (a) none of the Owners shall have any obligation to extend the Existing Scheduled Commitment Termination Date at any time, and (b) any such extension shall be effective with respect to any Ownership Group only upon the written agreement of the Managing Agent, each Committed Purchaser in such Ownership Group, the Issuer and the Servicer. Each Managing Agent will (on behalf of the related Committed Purchasers) respond to any such request by providing a response to the Issuer, the Servicer and each other Managing Agent not later than fifteen (15) days prior to the Existing Scheduled Commitment Termination Date, provided, that a failure by any Managing
Agent to respond on or before the fifteenth (15th) day prior to the Existing Scheduled Commitment Termination Date shall be deemed to be a rejection of the requested extension. On the fifteenth (15th) day prior to the Existing Scheduled Commitment Termination Date, the Issuer will notify each Managing Agent in writing which Ownership Groups, if any, have elected to extend the Existing Scheduled Commitment Termination Date for an additional period. Notwithstanding the foregoing, no agreement to an extension with respect to any Conduit Purchaser shall be effective unless the available commitments of the Conduit Support Providers under the applicable Conduit Support Documents and the credit and/or liquidity coverage committed under the program-wide credit and/or liquidity facilities for the commercial paper program of their respective Conduit Purchaser will continue to be in effect after such extension in the aggregate amounts, and for the period of time, necessary to maintain the then-current ratings of the respective Conduit Purchasers Commercial Paper Notes.
(d) If the Issuer requests the Managing Agents to extend the Scheduled Commitment Termination Date pursuant to Section 2.2(c), and some but less than all of the Managing Agents consent to such extension, then the Issuer may arrange for an assignment to one or more financial institutions of all the rights and obligations hereunder of each such non-renewing Managing Agent in accordance with the terms hereof; provided, however, that any such assignment must result in the payment in full of all amounts then payable to each such non-renewing Managing Agent and each member of its related Ownership Group (each, a Non-Renewing Ownership Group). Any such assignment shall become effective on the Existing Scheduled Commitment Termination Date. Each Managing Agent for a Non-Renewing Ownership Group, and each member of such Non-Renewing Ownership Group, shall cooperate fully with the Issuer in effectuating any such assignment.
(e) If the Issuer requests the Managing Agents to extend the Scheduled Commitment Termination Date pursuant to Section 2.2(c), and some but less than all of the Managing Agents consent to such renewal, and if none or less than all the Commitments of the Managing Agents for the Non-Renewing Ownership Groups are assigned as provided hereunder, then:
(i) the extended Scheduled Commitment Termination Date shall be effective with respect to the renewing Ownership Groups only;
(ii) the Commitments of all Non-Renewing Ownership Groups shall expire on the Existing Scheduled Commitment Termination Date;
(iii) this Agreement and the Commitments of the renewing Ownership Groups shall remain in effect in accordance with their terms notwithstanding the expiration of the Commitments of the Non-Renewing Ownership Groups; and
(iv) an Amortization Period shall commence with respect to the portion of the Series 2017-VFN Notes allocated to any Non-Renewing Ownership Group and Available Funds shall be applied in respect thereof as provided in Section 4.2(e) of the Series 2017-VFN Supplement.
When the principal amount of the Ownership Tranche of any Non-Renewing Ownership Group has been reduced to zero and all accrued interest allocable thereto and all other amounts owing to such Ownership Group hereunder shall have been paid in full, then the members of such Ownership Group shall cease to be parties to this Agreement for any purpose.
(f) If the Issuer requests the Managing Agents to extend the Scheduled Commitment Termination Date and none of the Managing Agents consent to such renewal, then:
(i) the original Scheduled Commitment Termination Date shall remain in effect; and
(ii) the Amortization Period shall commence as of the Existing Scheduled Commitment Termination Date.
SECTION 2.3 Interest, Fees, Expenses, Payments, Etc.
(a) Each Owners Percentage Interest of the Note Principal Balance of its Ownership Groups Series 2017-VFN Note shall bear interest for each Interest Period at a rate per annum equal to the Note Rate applicable to such Owner. The amount of monthly interest (Monthly Interest) distributable with respect to the Series 2017-VFN Notes on any Payment Date, shall be an amount equal to the aggregate sum for each Owner during the related Interest Period of (i) the product of (x) the Note Rate for such Ownership Group, (y) the average daily Note Principal Balance of the related Ownership Group during the preceding Interest Period and (z) a fraction, the numerator of which is the actual number of days elapsed in the related Interest Period and the denominator of which is 360 and (ii) the total accrued and unpaid VFN Non-Use Fee for the related Ownership Tranche for the preceding Interest Period; provided, however, that when calculating the Note Rate for any Ownership Group by reference to LIBOR, in the event LIBOR would be a rate less than zero percent per annum, such rate shall be rounded up to zero percent per annum. On the Determination Date preceding each Payment Date, the Servicer shall determine the excess, if any (the Monthly Interest Shortfall), of (x) the aggregate Monthly Interest for the Interest Period applicable to such Payment Date over (y) the amount which will be available to be distributed to Series 2017-VFN Noteholders on such Payment Date in respect thereof pursuant to the Series 2017-VFN Supplement. If the Monthly Interest Shortfall with respect to any Payment Date is greater than zero, an additional amount (Monthly Additional Interest) equal to the product of (i) the Note Rate for the Interest Period commencing on the related Payment Date (or, for subsequent Interest Periods, the Note Rate for such subsequent Interest Period), (ii) such Monthly Interest Shortfall (or the portion thereof which has not been paid to Series 2017-VFN Noteholders) and (iii) a fraction, the numerator of which is the amount of days elapsed in such Interest Period (or in a subsequent Interest Period) until such amount is paid, and the denominator of which is 360, shall be payable as provided in the Series 2017-VFN Supplement with respect to the Series 2017-VFN Notes on each Payment Date following such Payment Date to and including the date on which such Monthly Interest Shortfall is paid to Series 2017-VFN Noteholders. Notwithstanding anything to the contrary herein or in the Series 2017-VFN Supplement, Monthly Additional Interest shall be payable or distributed to Series 2017-VFN Noteholders only to the extent permitted by applicable law.
(b) The Note Principal Balance of each Series 2017-VFN Note shall be paid as provided in the Series 2017-VFN Supplement. Monthly Interest for each Interest Period shall be due and payable on each Payment Date as provided in the Series 2017-VFN Supplement. Each Managing Agent shall allocate payments in reduction of the Note Principal Balance of the Series 2017-VFN Note held by it to the Owners in the related Ownership Group pro rata based on their respective Percentage Interests. Each Managing Agent shall allocate payments of interest in respect of the Note Principal Balance of the Series 2017-VFN Note held by it to Owners in the related Ownership Group based upon the respective amounts of interest due and payable to them (calculated at the applicable Note Rate), determined as provided in this Section 2.3.
(c) On the Initial Closing Date, the Transferor shall pay to each Managing Agent, for the account of the Owners in the related Ownership Group, the Upfront Fee. On each Payment Date, the Issuer shall pay to each Managing Agent (as a portion of the Monthly Interest payable on such Payment Date), for the account of the Owners in the related Ownership Group, a fee equal to the product of (i) the VFN Non-Use Fee Rate applicable to the immediately preceding Interest Period (or portion thereof) and (ii) an amount equal to the excess (if any) of (A) the daily weighted average Commitment for such Ownership Group as in effect from time to time during the immediately preceding Interest Period (or portion thereof) over (B) the daily weighted average Note Principal Balance of the Series 2017-VFN Note held by such Ownership Group during the immediately preceding Interest Period (or portion thereof) (the VFN Non-Use Fee).
(d) Any interest, fees or other amounts due and payable hereunder (without regard to any limitations set forth herein on the sources from which such amount may be paid) which are not paid on the due date thereof (including Monthly Interest payable pursuant to clause (b) and fees payable pursuant to clause (c)) shall accrue interest (after as well as before judgment) at the applicable Note Rate from time to time in effect from and including the due date thereof to but excluding the date such amount is actually paid.
(e) Unless otherwise specified in this Agreement, interest calculated by reference to the Commercial Paper Rate or the Eurodollar Rate shall be calculated on the basis of a 360-day year for the actual days elapsed. Interest calculated by reference to the Prime Rate or the Federal Funds Effective Rate shall be calculated on the basis of a 365 or 366 day year, as applicable, for the actual days elapsed. Periodic fees or other periodic amounts payable hereunder shall be calculated, unless otherwise specified in this Agreement or the applicable Fee Letter, on the basis of a 360 day year and for the actual days elapsed.
(f) All payments to be made hereunder or under the Indenture, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 12:00 p.m., New York City time, on the due date thereof to the Administrative Agent or the applicable Managing Agent, as the case may be, at its account specified by the Administrative Agent or such Managing Agent on Schedule I hereto or otherwise specified from time to time, in United States dollars and in immediately available funds. Payments received by such Managing Agent after 12:00 p.m., New York City time, shall be deemed to have been made on the next Business Day, unless otherwise agreed to by such Managing Agent. Notwithstanding anything herein to the contrary, if any payment due
hereunder becomes due and payable on a day other than a Business Day, the payment date thereof shall be extended to the next succeeding Business Day and interest shall accrue thereon at the applicable rate during such extension. To the extent that (i) the Issuer, the Indenture Trustee or the Servicer makes a payment to the Administrative Agent or a Managing Agent or Owner or (ii) the Administrative Agent or a Managing Agent or Owner receives or is deemed to have received any payment or proceeds for application to an obligation, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy or insolvency law, state or federal law, common law, or for equitable cause, then, to the extent such payment or proceeds are set aside, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received or deemed received by the Administrative Agent or such Managing Agent or Owner, as the case may be.
(g) At or before 4:00 p.m., New York City time, on the second Business Day following the last day of each Interest Period (the Note Rate Determination Date), each Managing Agent shall notify the Servicer, the Administrative Agent, the Indenture Trustee and the Issuer of (i) the Note Rate for such Managing Agents related Ownership Group for the related Interest Period (or portion thereof), and (ii) if applicable, the date on which the Liquidity Funding Rate became applicable to the Percentage Interest of the Note Principal Balance or a portion thereof held by an Owner in the related Ownership Group. Such notification may be based on such Managing Agents determination of the Note Rate (and each component thereof) for such immediately preceding Interest Period.
SECTION 2.4 Requirements of Law.
(a) In the event that any Owner shall have reasonably determined that any Regulatory Change shall result in (i) any fee, expense or increased cost charged to, incurred or otherwise suffered by such Owner, (ii) the imposition or modification of any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, such Owner, (iii) a reduction in the rate of return on such Owners capital or reduction in the amount of any sum received or receivable by such Owner or (iv) an internal capital charge or other imputed cost determined by such Owner to be allocable to the Issuer or the transactions contemplated in this Agreement in connection therewith, and the result of any of the foregoing is to increase the cost to such Owner, by an amount which such Owner in good faith deems to be material, of maintaining its Commitment or its interest in the Series 2017-VFN Notes or to reduce any amount receivable in respect thereof, then, in any such case, after submission by such Owner to the Managing Agent for its Ownership Group, if applicable, of a written request therefor and the submission by such Managing Agent to the Issuer, the Administrative Agent and the Servicer of such written request therefor, the Issuer shall pay, in accordance with the priorities set forth in the Series 2017-VFN Supplement, to such Managing Agent for the account of such Owner, any additional amounts necessary to compensate such Owner for such increased cost or reduced amount receivable, to the extent not already reflected in the applicable interest rate, from the Payment Date following receipt by the Issuer of such request for compensation under this Section 2.4(a) of this Agreement, if such request is received by the Issuer at least five Business Days prior to such Payment Date, and otherwise from the following Payment Date, until payment in full thereof (after as well as before judgment).
(b) In the event that any Owner shall have reasonably determined that any Regulatory Change has or would have the effect of reducing the rate of return on such Owners capital or on the capital of any Person controlling any Owner as a consequence of its obligations hereunder or its maintenance of its Commitment or its interest in the Series 2017-VFN Notes to a level below that which such Owner, or such Person could have achieved but for such Regulatory Change (taking into consideration such Owners or such Persons policies with respect to capital adequacy) by an amount in good faith deemed by such Owner or such Person to be material, then, from time to time, after submission by such Owner to the Managing Agent for its Ownership Group, if applicable, of a written request therefore and submission by such Managing Agent to the Issuer, the Administrative Agent and the Servicer of such written request therefor, the Issuer shall pay to such Managing Agent for the account of such Owner such additional amount or amounts as will compensate such Owner or such Person, as applicable, for such reduction, from the Payment Date following receipt by the Issuer of such request for compensation under this Section 2.4(b), if such request is received by the Issuer at least five (5) Business Days prior to such Payment Date, and otherwise from the following Payment Date, until payment in full thereof (after as well as before judgment). Nothing in this Section 2.4(b) shall be deemed to require the Issuer to pay any amount to an Owner to the extent such Owner has been compensated therefor under another provision of this Agreement or to the extent such amount is already reflected in the applicable interest rate.
(c) Each Owner claiming increased amounts described in Section 2.4(a) or 2.4(b) of this Agreement will prepare and, if applicable, furnish to the Managing Agent for its Ownership Group (together with its request for compensation), a certificate prepared in good faith setting forth the basis and the calculation of the amount (in reasonable detail) of each request by such Owner for any such increased amounts or reductions referred to in Section 2.4(a) or 2.4(b) hereof. Any such certificate shall be conclusive absent manifest error, and such Managing Agent shall deliver a copy thereof to the Issuer, the Administrative Agent and the Servicer. Any failure on the part of any Owner to demand compensation for any amount pursuant to Section 2.4(a) or 2.4(b) hereof with respect to any period shall not constitute a waiver of such Owners right to demand compensation with respect to such period.
SECTION 2.5 Taxes.
(a) All payments made to the Owners, the Managing Agents or the Administrative Agent under this Agreement and the Indenture (including all amounts payable with respect to the Series 2017-VFN Notes) shall, to the extent allowed by law, be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority (collectively, Taxes), excluding (i) income taxes (including branch profit taxes, minimum taxes and taxes computed under alternative methods, at least one of which is based on or measured by net income), franchise taxes (imposed in lieu of income taxes), or any other taxes based on or measured by the net income of such Owner, Participant, Managing Agent or the Administrative Agent (as the case may be) or the gross receipts or income of such Owner, Participant, Managing Agent or the Administrative Agent, as the case may be; (ii) any Taxes that would not have been imposed but for the failure of such Owner, Participant, Managing Agent or the Administrative Agent, as applicable, to provide and keep current (to the extent legally able) any certification or other documentation required to qualify for an exemption from, or reduced rate of, any such Taxes or required by this Agreement to be furnished by such Owner, Participant, Managing Agent or the Administrative Agent, as applicable; (iii) any Taxes imposed as a result of a change by any Owner or Participant of its Investing Office (other than changes required by law); and (iv) any U.S. federal withholding Taxes imposed under FATCA (all such excluded taxes being hereinafter called Excluded Taxes). If, as a result of any change in law, treaty or regulation or in the interpretation or administration thereof by any governmental or regulatory agency or body charged with the administration or interpretation thereof, or the adoption of any law, treaty or regulation, any Taxes, other than Excluded Taxes (all such changes being hereinafter called Specified Tax Changes), are required to be withheld from any amounts payable to an Owner or Managing Agent or the Administrative Agent hereunder or under the Indenture, then, after submission by any Owner to the Managing Agent for its Ownership Group (in the case of an amount payable to an Owner) and by any Managing Agent or the Administrative Agent to the Issuer and the Servicer of a written request therefor, the amounts so payable to such Owner or Managing Agent or the Administrative Agent, as applicable, shall be increased by the Issuer, and the Issuer shall pay, in accordance with the priorities set forth in the Series 2017-VFN Supplement, to the applicable Managing Agent for the account of such Owner or for its own account or to the Administrative Agent, as applicable, the amount of such increase to the extent necessary to yield to such Owner or Managing Agent or the Administrative Agent, as applicable (after payment of all such Taxes) interest or any such
other amounts payable hereunder or thereunder at the rates or in the amounts specified in this Agreement and the Indenture; provided, however, that the amounts so payable to such Owner or Managing Agent or the Administrative Agent shall not be increased pursuant to this Section 2.5(a) if such requirement to withhold results from the failure of such Person to comply with Section 2.5(c) hereof. Whenever any Taxes are payable on or with respect to amounts distributed to an Owner or Managing Agent or the Administrative Agent, as promptly as possible thereafter the Servicer shall send to the Managing Agent, on behalf of such Owner, or to such Managing Agent or the Administrative Agent, as applicable, a certified copy of an original official receipt showing payment thereof. If the Issuer fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Managing Agent, on behalf of itself or such Owner, or to such Managing Agent or the Administrative Agent, as applicable, the required receipts or other required documentary evidence, the Issuer shall promptly pay to such Managing Agent on behalf of such Owner or to such Managing Agent or the Administrative Agent for its own account, as applicable, any incremental taxes, interest or penalties that may become payable by such Owner or Managing Agent or the Administrative Agent, as applicable, as a result of any such failure.
(b) An Owner claiming increased amounts under Section 2.5(a) hereof for Taxes paid or payable by such Owner will furnish to the applicable Managing Agent a certificate prepared in good faith setting forth the basis and amount of each request by such Owner for such Taxes, and such Managing Agent shall deliver a copy thereof to the Issuer, the Administrative Agent and the Servicer. A Managing Agent or the Administrative Agent claiming increased amounts under Section 2.5(a) hereof for its own account for Taxes paid or payable by such Managing Agent or the Administrative Agent, as applicable, will furnish to the Issuer and the Servicer a certificate prepared in good faith setting forth the basis and amount of each request by the Managing Agent or the Administrative Agent for such Taxes. Any such certificate of an Owner or Managing Agent or the Administrative Agent shall be conclusive absent manifest error. Failure on the part of any Owner or Managing Agent or the Administrative Agent to demand additional amounts pursuant to Section 2.5(a) of this Agreement with respect to any period shall not constitute a waiver of the right of such Owner or Managing Agent or the Administrative Agent, as the case may be, to demand compensation with respect to such period. All such amounts shall be due and payable to such Managing Agent on behalf of such Owner or to such Managing Agent or the Administrative Agent for its own account, as the case may be, on the Payment Date following receipt by the Issuer of such certificate, if such certificate is received by the Issuer at least five (5) Business Days prior to the Determination Date related to such Payment Date and otherwise shall be due and payable on the following Payment Date (or, if earlier, on the Series 2017-VFN Stated Maturity Date).
(c) Each Owner and each Participant holding an interest in Series 2017-VFN Notes agrees that prior to the date on which the first interest or fee payment hereunder is due thereto, it will deliver to the Issuer, the Servicer, the Indenture Trustee, the applicable Managing Agent and the Administrative Agent (i) (x) if such Owner or Participant is not a United States person as defined in Section 7701(a)(30) of the Code, two duly completed copies of the U.S. Internal Revenue Service Form W-8ECI, Form W-8BEN claiming treaty benefits, Form W-8BEN-E, Form W-8IMY or Form W-8EXP, or successor applicable forms required to evidence that the Owner or Participant is entitled to receive payments under this Agreement and with respect to the Series 2017-VFN Notes without deduction or withholding of any United
States federal income taxes, or (y) if such Owner or Participant is a United States person, a duly completed U.S. Internal Revenue Service Form W-9 or successor applicable or required forms, and (ii) such other forms and information as may be required to confirm the availability of any applicable exemption from United States federal, state or local withholding and backup withholding taxes. Each Owner or Participant holding an interest in Series 2017-VFN Notes also agrees to deliver to the Issuer, the Servicer, the Indenture Trustee, the applicable Managing Agent and the Administrative Agent two further copies of such Form W-8ECI, Form W-8BEN, Form W-8BEN-E, Form W-8IMY or Form W-8EXP or Form W-9, as applicable, or such successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it hereunder, and such extensions or renewals thereof as may reasonably be requested by the Servicer, the Indenture Trustee, the Issuer, a Managing Agent or the Administrative Agent, unless in any such case, solely as a result of a change in treaty, law or regulation occurring prior to the date on which any such delivery would otherwise be required, the Owner is no longer eligible to deliver the then-applicable form set forth above and so advises the Servicer, the Indenture Trustee, the Issuer, the applicable Managing Agent and the Administrative Agent.
(d) If a payment made to a recipient hereunder would be subject to U.S. federal withholding tax imposed by FATCA if such recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such recipient shall deliver to the Issuer, the Servicer, the Indenture Trustee, the applicable Managing Agent and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by such persons such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Issuer, the Servicer, the Indenture Trustee, the applicable Managing Agent and the Administrative Agent as may be necessary for such persons to comply with their obligations under FATCA and to determine that such recipient has complied with such recipients obligations under FATCA or to determine the amount to deduct and withhold from such payment.
SECTION 2.6 Indemnification.
(a) The Issuer hereby agrees, subject to the terms of the Series 2017-VFN Supplement, to indemnify (and pay to) the Administrative Agent, each Managing Agent, each Conduit Trustee, each Collateral Agent and each Owner, and their respective officers, directors, employees, stockholders, members, agents, representatives, assignees, successors, and affiliates (each an Indemnified Party) from and against any and all damages, losses, claims, liabilities, costs, expenses and for all other amounts payable, including reasonable accountants and attorneys fees (which attorneys may be employees of the applicable Indemnified Party or its assigns) and disbursements (all of the foregoing being collectively referred to as Indemnified Amounts) awarded against or incurred by any of them, excluding (x) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (y) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor; or (z) Excluded Taxes relating to an Indemnified Amount solely in respect of Taxes, arising out of or as a result any of the following:
(i) the failure of any Receivable reported by the Issuer as an Eligible Receivable to be an Eligible Receivable at the time of transfer to the Issuer;
(ii) any representation or warranty made or deemed made by the Issuer (or any officers of the Issuer) under or in connection with this Agreement, any other Transaction Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;
(iii) the failure by the Issuer to comply with any applicable Requirement of Law with respect to any Contract or Receivable;
(iv) any failure of the Issuer to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Transaction Document;
(v) any products liability, personal injury or damage suit or other similar claim arising out of or in connection with products or services that are the subject of any Contract or any Receivable;
(vi) any dispute, defense, claim or offset (other than the bankruptcy of an Obligor, unless the basis for any avoidance action, or any diminution in the claim related to any Receivable, during any bankruptcy proceeding relates to any action or omission on the part of the Issuer) of the Obligor to the payment of any Receivable (including, without limitation, a defense based on such Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms);
(vii) the commingling of Collections of Receivables at any time with other funds;
(viii) any investigation, litigation or proceeding related to or arising from this Agreement or the other Transaction Documents, the transactions contemplated hereby and thereby, the transfer of the Receivables to the Issuer, or any other investigation, litigation or proceeding relating to the Issuer in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;
(ix) any inability to litigate any claim against any Obligor in respect of any Receivable as a result of such Obligor being immune at the time of the transfer of such Receivable from the applicable Originator to the Seller, from the Seller to the Transferor, and from the Transferor to the Issuer, from civil and commercial law and suit;
(x) any failure to vest and maintain vested in the Issuer, legal and equitable title to, and ownership of, the Receivables (and the Related Rights relating thereto), the Trust Assets and the Collections, free and clear of any Lien;
(xi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the Lien of the Indenture Trustee in the Collateral;
(xii) the failure of the Transferor to receive reasonably equivalent value for the Receivables and Related Rights that it transfers to the Issuer;
(xiii) any action or omission by the Issuer that reduces or impairs the rights of the Issuer or its assigns with respect to any Receivable or the ability to collect the principal balance of such Receivable;
(xiv) any transfer under the Receivables Sale Agreement, the Receivables Purchase Agreement or the Transfer and Servicing Agreement being found to be void by a court of competent jurisdiction;
(xv) the failure by the Issuer to pay when due any taxes owed by it, including, without limitation, sales, excise or personal property taxes;
(xvi) any attempt by any Person to void any transfer hereunder based on the acts or omissions of the Issuer; or
(xvii) the failure of the principal balance of any Receivable to equal the amount reported or represented by the Issuer as the principal balance of such Receivable.
(b) The Servicer shall indemnify and hold harmless each Indemnified Party against Indemnified Amounts, as incurred (payable promptly upon written request), for or on account of or arising from or in connection with, or otherwise with respect to, any breach of any representation, warranty, covenant, agreement or other obligation of the Servicer set forth in this Agreement, the Transfer and Servicing Agreement or any other Transaction Document to which the Servicer is a party, or any breach of any representation or warranty set forth in any certificate or report of the Servicer delivered pursuant hereto or thereto; provided, however, that (i) the Servicer shall not be so required to indemnify any such Indemnified Party or otherwise be liable to any such Indemnified Party hereunder for any Indemnified Amounts incurred for or on account of or arising from or in connection with or otherwise with respect to any breach of a covenant set forth in the Transfer and Servicing Agreement a remedy for the breach of which is provided in Sections 2.05 of the Transfer and Servicing Agreement and (ii) the Servicer shall not be required to indemnify any Indemnified Party for (x) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Indemnified Party seeking indemnification; (y) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or (z) Excluded Taxes.
(c) Subject to paragraph (d) below, in order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any Person against the Indemnified Party, such Indemnified Party must notify the Issuer or the Servicer, as applicable, of the claim made by a third party promptly
after receipt by such Indemnified Party of written notice of such claim. Thereafter, the Indemnified Party shall deliver to the Issuer or the Servicer, as applicable, within a reasonable time after the Indemnified Partys receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such claim.
(d) If any action or proceeding (including, without limitation, any governmental proceeding) is brought or asserted against any Indemnified Party in respect of which indemnity may be sought against the Issuer or the Servicer, as applicable, the Indemnified Party shall promptly notify the Issuer or the Servicer, as applicable, of the commencement of such action or proceeding; provided, however, that failure to notify the Issuer or the Servicer, as applicable, will not relieve the Issuer or the Servicer, as applicable, of any liability or obligation hereunder except to the extent it is materially prejudiced by such failure. Upon receipt of such notice, the Issuer or the Servicer, as applicable, may assume the defense of such action or proceeding, including the employment of counsel satisfactory to the Indemnified Parties in their reasonable judgment and the payment of all related expenses; provided that the Issuer or the Servicer, as applicable, admits in writing its liability to indemnify the Indemnified Party with respect to all elements of such claim in full. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and to participate in (but not control) the defense thereof, but the fees and expenses of such counsel shall be at its own expense unless (a) the Issuer or the Servicer, as applicable, shall have failed to assume or continue the defense of such action or proceeding, (b) the named parties to any such action or proceeding (including any impleaded parties) include both such Indemnified Party and the Issuer or the Servicer, as applicable, or another person or entity that may be entitled to indemnification from the Issuer or the Servicer, as applicable (by virtue of this Agreement or otherwise), and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to such Indemnified Party which are different from or additional to those available to the Issuer or the Servicer, as applicable, or such other party or shall otherwise have reasonably determined the co-representation would present such counsel with a conflict of interest, or (c) the Issuer or the Servicer, as applicable, and the Indemnified Parties shall have mutually agreed to the retention of separate counsel. Anything contained in this Agreement to the contrary notwithstanding, neither the Issuer nor the Servicer shall be required or entitled to assume the defense of any part of a third party claim that specifically seeks an order, injunction or other equitable relief or relief for other than money damages against an Indemnified Party.
(e) In the event that for any reason, (i) the basis for calculation of interest on any Conduit Purchasers Percentage Interest of the Note Principal Balance shall change from the Commercial Paper Rate to the Liquidity Funding Rate, (ii) any Owner receives any repayment of its share of the Note Principal Balance (x) that is on a date other than a Payment Date or (y) upon fewer than three (3) Business Days prior written notice, or (iii) the Issuer shall fail to borrow any Note Principal Balance Increase on the date specified in the related Funding Notice, then, in any such case the Issuer agrees to indemnify each affected Owner against, and to promptly pay directly to such Owner, subject to the terms of the Series 2017-VFN Supplement, the amount equal to the Breakage Costs with respect thereto. A statement setting forth in reasonable detail the calculations of any additional amounts payable pursuant to this Section, submitted by an Owner or Managing Agent or by the Administrative Agent, as the case may be, to the Issuer and the Servicer shall be conclusive absent manifest error.
SECTION 2.7 Expenses, Etc.
(a) The Issuer agrees to pay to the Administrative Agent, each Managing Agent and each Owner, all reasonable costs and expenses, including, without limitation, the reasonable fees and out of pocket expenses of counsel, incurred by any of them in connection with (i) the preparation, execution, and delivery of this Agreement and each other Transaction Document, (ii) any amendments of, or waivers or consents under, this Agreement or the Transaction Documents, and (iii) the enforcement of this Agreement or any of the Transaction Documents, and the other documents delivered thereunder or in connection therewith.
(b) The Issuer agrees to pay any and all reasonable fees and expenses (including, without limitation, rating agency fees and expenses and fees and expenses of counsel) incurred by any Conduit Purchaser or Committed Purchaser in connection with an investment in the Series 2017-VFN Notes and any and all stamp, transfer and other similar taxes (other than Excluded Taxes and Taxes covered by Section 2.5 hereof) and governmental fees payable in connection with the execution, delivery, filing and recording of any of the Transaction Documents and each related Support Facility, and agrees to hold each Owner and Managing Agent and the Administrative Agent harmless from and against any liabilities with respect to or resulting from any delay in paying or any omission to pay such taxes and fees.
ARTICLE IIA
CLOSING
Section 2A.1 Closing. The closing (the Closing) of the transactions described in Section 2A.2 hereof shall take place at 11:00 a.m. at the offices of Sidley Austin LLP, One South Dearborn, Chicago, Illinois 60603 on December 20, 2017, or if the conditions to closing set forth in Article III of this Agreement shall not have been satisfied or waived by such date, as soon as practicable after such conditions shall have been satisfied or waived, or at such other time, date and place as the parties shall agree upon (the date of the Closing being referred to herein as the Initial Closing Date).
Section 2A.2 Transactions to be Effected at the Closing. At the Closing, upon the satisfaction of the conditions precedent described in Article III hereof, the following transactions shall be effected:
(a) The Commitment under each of the Thunder Bay Note and the TD Bank Note shall be equal to the applicable amount specified on Schedule I hereto.
(b) The Transferor shall cause the Issuer to issue and deliver (i) the Thunder Bay Note to the Thunder Bay Managing Agent, and (ii) the TD Bank Note to the TD Bank Managing Agent, each authenticated in accordance with the Indenture and with a Commitment equal to the applicable amount specified on Schedule I hereto.
(c) On the Initial Closing Date, after giving effect to the transactions contemplated in this Article IIA, each of the Series 2017-VFN Notes shall have the respective Commitment, Ownership Group Share and Tranche Invested Amount specified on Schedule I hereto.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 Conditions to Purchase of Series 2017-VFN Notes. The acquisition of the Series 2017-VFN Notes on the Initial Closing Date is subject to the satisfaction of each of the following conditions on or prior to the Initial Closing Date (any or all of which may be waived by the Managing Agents in their sole and absolute discretion):
(a) Documents. The Managing Agents shall have received on or before the date hereof each of the items listed on Schedule IV hereto, each (unless otherwise indicated) dated the date hereof, duly executed by the parties thereto and in form and substance reasonably satisfactory to the Managing Agents.
(b) Performance by USCC, the Transferor, the Issuer, the Performance Guarantor, the Originators and the Indenture Trustee. All of the conditions precedent set forth in the Indenture to the issuance of the Notes have been satisfied and all of the terms, covenants, agreements and conditions set forth in this Agreement, the Indenture, each other Transaction Document to be complied with and performed by USCC, the Transferor, the Issuer, the Servicer, the Performance Guarantor, the Originators or the Indenture Trustee, as the case may be, by the date hereof have been complied with or otherwise waived by the Managing Agents.
(c) Representations and Warranties. Each of the representations and warranties of USCC, the Transferor, the Issuer, the Servicer, the Performance Guarantor, each Originator and the Indenture Trustee made in this Agreement, the Indenture and each other Transaction Document, as applicable, are true and correct in all material respects as of the date hereof as though made as of such time (except to the extent that they expressly relate to an earlier or later time).
(d) Officers Certificate. The Administrative Agent and each Managing Agent shall have received an Officers Certificate from the Servicer and the Transferor in form and substance reasonably satisfactory to the Administrative Agent and each Managing Agent and their respective counsel, dated as of the Initial Closing Date, certifying as to the satisfaction of the conditions set forth in Section 3.1(b) and Section 3.1(c) hereof.
(e) Financing Statements; Search Reports. The Administrative Agent and each Managing Agent shall have received evidence satisfactory to it that financing statements, as may be necessary or, in the opinion of the Administrative Agent, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Transaction Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid, including:
(i) Evidence satisfactory to the Administrative Agent and each Managing Agent that all UCC financing statements, assignments and amendments have been provided to the Administrative Agent for filing on the Initial Closing Date in the offices of the Secretary of State of the applicable states and in the appropriate office or
offices or such other locations as may be specified in the opinions of counsel delivered pursuant to Sections 3.1(l), 3.1(m) and 3.1(n) hereof; and
(ii) Certified copies of requests for information (Form UCC-11) (or a similar search report certified by parties acceptable to the Managing Agents and their counsel) dated a date reasonably near the Initial Closing Date and listing all effective financing statements which name any Originator, the Transferor, USCC and the Issuer, as seller, assignor or debtor, as applicable, and which are filed in all jurisdictions in which the filings were or will be made, together with copies of such financing statements.
(f) Ratings. To the extent applicable, the Administrative Agent and each Managing Agent shall have received evidence that each Conduit Purchasers Commercial Paper Notes shall continue to be rated at least (i) A-1 by Standard & Poors and P-1 by Moodys, or (ii) the required rating applicable for the related Conduit Purchaser with respect to any other Rating Agency that is rating such Conduit Purchasers Commercial Paper Notes, in each case as a result of entering into the transactions contemplated by this Agreement, including after giving effect to any funding to occur hereunder on the Initial Closing Date, if applicable.
(g) No Actions or Proceedings. No action, suit, proceeding or investigation by or before any Governmental Authority shall have been instituted to restrain or prohibit the consummation of, or to invalidate, the transactions contemplated by the Transaction Documents and the documents related thereto in any material respect.
(h) Approvals and Consents. All Governmental Actions of all Governmental Authorities required with respect to the transactions contemplated by the Transaction Documents and the other documents related thereto shall have been obtained or made.
(i) Transferor Amount. The Administrative Agent and each Managing Agent shall have received evidence that the Transferor Amount is greater than or equal to the Minimum Transferor Amount.
(j) Asset Base. The Administrative Agent and each Managing Agent shall have received evidence that no Asset Base Deficiency exists.
(k) Corporate Documents. The Administrative Agent and each Managing Agent shall have received copies, each of which shall be in form and substance satisfactory to the Administrative Agent and each Managing Agent, of the (i) certificate of formation or certificate of incorporation, limited liability company agreement or by-laws, and good standing certificate of the Transferor, the Servicer and the Performance Guarantor, as applicable, (ii) certified copy of the certificate of trust of the Issuer and the Trust Agreement, (iii) Board of Directors resolutions of the Transferor, the Servicer and the Performance Guarantor with respect to the Transaction Documents to which such Person is a party, and (iv) incumbency certificate of the Transferor, the Servicer and the Performance Guarantor, in each case as certified by appropriate corporate authorities, if applicable.
(l) Opinions of Counsel. Counsel to each of the Transferor, the Issuer, the Servicer, the Originators and the Performance Guarantor shall have delivered to the Administrative Agent and each Managing Agent opinions of counsel reasonably satisfactory in
form and substance to the Administrative Agent and its counsel, dated as of the Initial Closing Date, with respect to corporate matters, legality, validity and enforceability of the Transaction Documents, no conflict of law, true sale matters, substantive consolidation matters, non-contravention of charter documents, tax matters and Investment Company Act and Volcker Rule matters, addressed to the Administrative Agent and each Managing Agent.
(m) Opinions of Counsel to the Trustees. Counsel to each of the Indenture Trustee and the Owner Trustee shall have delivered to the Administrative Agent and each Managing Agent an opinion of counsel reasonably satisfactory in form and substance to the Administrative Agent and its counsel, dated as of the Initial Closing Date, with respect to such matters as the Administrative Agent may reasonably request.
(n) Security Interest Opinion. Counsel to the Transferor shall have delivered to the Administrative Agent and each Managing Agent an opinion of counsel, dated as of the Initial Closing Date, with respect to the creation and perfection of the security interest of the Indenture Trustee (on behalf of the Noteholders) in the Receivables and Related Rights, and the other Series Collateral granted pursuant to the Indenture under the New York UCC in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(o) Accounts. The Administrative Agent and each Managing Agent shall have received evidence that the Series 2017-VFN Series Account, the Collection Account and the Excess Funding Account have been established in accordance with the terms of the Transaction Documents.
(p) No Amortization Events, etc. No Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default shall have occurred and be continuing (in each case, before and after giving effect to the purchase).
(q) Fees. All fees required to be paid to the Administrative Agent, the Managing Agents or the Owners on or prior to the date hereof in accordance with this Agreement, the Fee Letters and each other Transaction Document shall have been paid in full in accordance with the terms thereof.
(r) Other Documents. The Administrative Agent and each Managing Agent shall have received such additional documents, instruments, certificates or letters as the Administrative Agent or such Managing Agent may reasonably request.
SECTION 3.2 Conditions to Note Principal Balance Increases. The following shall be conditions precedent to the obligation of any Owner to fund its share of any Note Principal Balance Increase on any Funding Date:
(a) each Managing Agent shall have timely received a properly completed Funding Notice;
(b) all conditions precedent to such Note Principal Balance Increase on such Funding Date set forth in the Indenture or any other Transaction Document shall have been satisfied;
(c) after giving effect to the issuance of the Series 2017-VFN Notes or the funding of such Note Principal Balance Increase on such Funding Date, as applicable, all representations and warranties of USCC, the Transferor, the Issuer, the Performance Guarantor, the Servicer and each Originator, as applicable, contained herein or in the other Transaction Documents or otherwise made in writing pursuant to any of the provisions hereof or thereof shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of such date (other than representations and warranties which specifically relate to an earlier date, which shall be true and correct in all material respects as of such earlier date);
(d) USCC, the Transferor, the Issuer, the Performance Guarantor, the Servicer and each Originator shall be in compliance in all material respects with all of their respective covenants contained in the Transaction Documents to be performed on or prior to such date;
(e) the Transferor or the Servicer shall have delivered to the Managing Agents an executed Contract Additions Report relating to the applicable Transferred Assets and Related Rights;
(f) the Transferor and the Servicer shall have taken any actions necessary or advisable to maintain the Indenture Trustees perfected security interest in the Transferred Assets for the benefit of the Owners;
(g) no Asset Base Deficiency, Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default shall have occurred and be continuing (in each case, before and after giving effect to such Note Principal Balance Increase);
(h) immediately after giving effect to such Note Principal Balance Increase:
(1) the Note Principal Balance shall not exceed the VFN Maximum Principal Amount; and
(2) the Transferor Amount is greater than the Minimum Transferor Amount; and
(3) the Administrative Agent and each Managing Agent shall have received evidence that USCC, as sponsor, satisfies the Sellers Interest Retention Requirements (either directly or through one or more Wholly-Owned Subsidiaries (as defined in and permitted by Regulation RR);
(i) the Scheduled Commitment Termination Date shall not have occurred;
(j) with respect to a Conduit Purchaser, such Conduit Purchaser has agreed to participate in such Note Principal Balance Increase;
(k) the Managing Agents shall have received a Monthly Report, computed after giving effect to the Note Principal Balance Increase on such Funding Date;
(l) no event has occurred and is continuing that would have a Material Adverse Effect; and
(m) the Servicer shall have delivered each Monthly Report, certificate or report required to be delivered by it pursuant to this Agreement, the Transfer and Servicing Agreement and each other Transaction Document to which it is a party.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1 Representations and Warranties of the Servicer, the Transferor and the Issuer. Each of the Servicer, the Transferor and the Issuer represents and warrants (each with respect to itself only) to the Owners, the Managing Agents and the Administrative Agent that as of the Initial Closing Date and as of each Funding Date:
(a) Organization, Qualification and Good Standing. It is a duly organized and validly existing corporation, statutory trust or limited liability company in good standing under the laws of the State of Delaware, with the power and authority under its organizational documents and under the laws of Delaware to own its assets and to conduct its business in which it is currently engaged. It is duly qualified to do business as a foreign company and is in good standing in each jurisdiction in which the character of the business transacted by it or properties owned or leased by it requires such qualification and in which the failure so to qualify could reasonably be expected to have a material adverse effect on the business, properties, assets, or condition (financial or otherwise) of it or its ability to perform its duties under this Agreement and the other Transaction Documents to which it is a party.
(b) Due Authorization; Binding Obligation. It has the power and authority to make, execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party and all of the transactions contemplated under this Agreement and the other Transaction Documents to which it is a party, and has taken all necessary corporate, limited liability company or trust action, as applicable, to authorize the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party. This Agreement and the other Transaction Documents to which it is a party have been duly executed and delivered by it and constitute the legal, valid and binding obligation of such party, enforceable in accordance with their terms, except as enforcement of such terms may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally, any applicable law imposing limitations upon, or otherwise affecting, the availability or enforcement of rights to indemnification hereunder, and by the availability of equitable remedies.
(c) No Conflict. The execution and delivery of this Agreement and the other Transaction Documents to which it is a party, and the performance by it of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof and thereof by it, including the issuance, sale, assignment and conveyance of the Series 2017-VFN Notes, will not conflict with or violate any provision of any existing law or regulation or any order or decree of any court or the certificate of formation, certificate of trust or limited liability company agreement of such party, or constitute (with or
without notice or lapse of time or both) a default under or material breach of any mortgage, indenture, contract, deed of trust, instrument or other agreement to which it is a party or by which it or any of its properties may be bound, nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument, nor violate any law or, to the best of such partys knowledge, any order, rule or regulation applicable to such party of any Governmental Authority having jurisdiction over it or its properties (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on such party or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the other Transaction Documents to which it is a party).
(d) No Proceedings. There are no proceedings or investigations, pending or, to the best knowledge of such party, threatened against it before any court, arbitrator or Governmental Authority (i) asserting the invalidity of this Agreement and the other Transaction Documents to which it is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party, (iii) seeking any determination or ruling that, in the reasonable judgment of such party, would materially and adversely affect the performance by it of its obligations under this Agreement and the other Transaction Documents to which it is a party, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement and the other Transaction Documents to which it is a party, which, in each case, if adversely determined would be reasonably likely to result in a Material Adverse Effect, or (v) seeking to materially and adversely affect the income or franchise tax attributes of it under the United States federal or any state income or franchise tax systems. It is not in default with respect to any order, judgment or decree of any court, arbitrator or Governmental Authority, except to the extent that any such default does not have a Material Adverse Effect.
(e) All Consents. All authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by such party in connection with the execution and delivery by it of this Agreement and the other Transaction Documents to which it is a party and the performance of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party by such party have been duly obtained, effected or given and are in full force and effect, except for those which the failure to obtain would not have a material adverse effect on this Agreement, the other Transaction Documents or the transactions contemplated thereby or on the ability of such party to perform its obligations under this Agreement or the other Transaction Documents to which it is a party.
(f) Licensing. It is properly licensed in each jurisdiction to the extent required by the laws of such jurisdiction in order to originate, acquire, own, hold or service the Receivables, as applicable, except where the failure to be so licensed would not have a Material Adverse Effect.
(g) Compliance with Requirements of Law. It (i) shall duly satisfy all obligations on its part to be fulfilled under or in connection with each Receivable, and (ii) in the
case of the Servicer, it (A) will maintain in effect all qualifications required under Requirements of Law in order to service properly each Receivable, and (B) will comply in all material respects with all other Requirements of Law in connection with servicing each Receivable, except where the failure to so comply would not have a Material Adverse Effect.
(h) Protection of Rights. It shall take no action in violation of this Agreement which, nor omit to take in violation of this Agreement any action the omission of which, would substantially impair the rights of the Owners, the Issuer or the Indenture Trustee in any Receivable.
(i) Investment Company Act. (i) Each of the Transferor and the Issuer is not required to be registered as an investment company under the Investment Company Act of 1940, as amended (the Investment Company Act); (ii) the Issuer satisfies the requirements to rely on the exemption from the definition of investment company provided by the exclusion provided by Section 3(c)(5) under the Investment Company Act, although there may be additional exclusions or exemptions available to the Issuer; and (iii) the interests under the Transaction Documents will not cause the Owners, the Managing Agents or the Administrative Agent to have an ownership interest in a covered fund for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (commonly referred to as the Volcker Rule).
(j) Legal Name; Location. Its sole jurisdiction of organization is the State of Delaware and such jurisdiction has not changed within four months prior to the date of this Agreement. Its principal place of business and chief executive office and its federal employer identification number and Delaware organizational identification number is set forth on Schedule III hereto. It has not, and has not used at any time during the past five years, any prior legal names, trade names, fictitious names, assumed names or doing business as names except as set forth on Schedule III hereto.
(k) Accuracy of Information. All certificates, reports, statements, documents and other information furnished by it to the Indenture Trustee, the Administrative Agent, the Managing Agents or any Noteholder pursuant to any provision of this Agreement or any other Transaction Document, or in connection with or pursuant to any amendment or modification of, or waiver under, this Agreement or any other Transaction Document, shall, at the time the same are so furnished, be complete and correct in all material respects on the date the same are furnished.
(l) Solvency. No Insolvency Event with respect to it has occurred and no transfer of the Receivables and the Related Rights has been made in contemplation of the occurrence thereof. It (i) is not insolvent (as such term is defined in §101(32)(A) of the Bankruptcy Code, (ii) is able to pay its debts as they come due; and (iii) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage.
(m) Use of Proceeds. No proceeds of a funding hereunder will be used by the Transferor for a purpose that violates or would be inconsistent with Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(n) Taxes. It has filed all United States federal income tax returns (if any) and all other tax returns which are required to be filed by it and has paid all material taxes, assessments or governmental charges of any kind that are due and payable by it pursuant to such returns or pursuant to any assessment received by it; provided, that it may contest in good faith any such taxes, assessments and other charges and, in such event, may permit the taxes, assessments or other charges so contested to remain unpaid during any period, including appeals, when it is in good faith contesting the same, so long as (i) adequate reserves have been established in accordance with GAAP, (ii) enforcement of the contested tax, assessment or other charge is effectively stayed for the entire duration of such contest if such enforcement could reasonably be expected to have a material adverse effect on its financial condition or operations or its ability to perform its obligations under the Transaction Documents to which it is a party, and (iii) any tax, assessment or other charge determined to be due, together with any interest or penalties thereon, is promptly paid as required after final resolution of such contest. The charges, accruals and reserves on its books in respect of taxes and other governmental charges are, in its opinion, adequate. The Transferor is exclusively resident for tax purposes in the United States and, for the purposes of this Agreement and the other Transaction Documents to which it is a party, will not act through any branch or permanent establishment located outside of the United States.
(o) ERISA. With respect to the Transferor and the Issuer only, such entity does not maintain or contribute to any Plan or Multiemployer Plan, nor has it maintained or contributed to any Plan or Multiemployer Plan within the preceding five years and its assets do not constitute the plan assets of any benefit plan investor each within the meaning of Section 3(42) of ERISA and the U.S. Department of Labor regulations set forth at 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA.
(p) No Amortization Event, Event of Default or Servicer Default. No Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default.
(q) Eligibility. As of the Initial Closing Date, the Initial Addition Date and as of each date on which the Asset Base is calculated, each Receivable included in such calculation as an Eligible Receivable is an Eligible Receivable on such date.
(r) Commodity Futures Trading Act. It is not a commodity pool such that an Owner would be a commodity pool operator with respect thereto or a commodity pool by reason of its ownership of the Series 2017-VFN Notes.
(s) Transaction Documents. Each of its representations and warranties in the Indenture and the other Transaction Documents to which it is a party is true and correct in all material respects.
(t) Compliance with Credit and Collection Policies. It has complied in all material respects with the Credit and Collection Policies with regard to each Contract and the related Receivables and Related Rights. It has not made any change to such Credit and Collection Policies, other than as permitted under Section 4.7(u) hereof.
(u) Separateness. Each of the Seller and USCC is, and all times since its organization has been, operated in such a manner that it would not be substantively consolidated with the Transferor and such that the separate existence of the Transferor would not be disregarded in the event of a bankruptcy or insolvency of the Seller or USCC.
(v) [Reserved].
(w) Anti-Corruption Laws and Sanctions. It has implemented and maintains in effect policies and procedures designed to ensure compliance by it and its Subsidiaries, directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and it, each of its respective Subsidiaries, its respective officers and employees, and to its knowledge, its respective directors and agents, is in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of it, any of its Subsidiaries or any director, officer, employee, agent or affiliate of it or any of its Subsidiaries that will act in any capacity in connection with or benefit from the facility established hereby, is a Sanctioned Person. No Note Principal Balance Increase, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(x) Anti-Money Laundering. It is acting on its own behalf with respect to all matters associated with this Agreement. It undertakes to provide the Indenture Trustee and each Owner, upon its reasonable request, with all information and documents which the Indenture Trustee or such Owner requires in order to comply with its obligations under all applicable anti-money laundering laws.
(y) Authentication of Contract Additions Reports and Receivables Schedules. The Transferor represents, warrants and agrees that transmission of each Contract Additions Report and each Receivables Schedule consisting of, including or accompanied by an electronic file (which may be a PDF or the insertion of the relevant language and names in a Word, Excel or other electronic document) and transmitted either (a) from an email address of a representative of the Seller, the Servicer or the Transferor or (b) through a virtual data room acceptable to the Administrative Agent, shall be evidence of its present intent to adopt or accept such record as the authentication of a security agreement for purposes of Sections 9-102 and 9-203 of the UCC.
SECTION 4.2 Additional Representations and Warranties of the Servicer. The Servicer, in its capacity as Servicer, represents and warrants to the Owners, the Managing Agents and the Administrative Agent that as of the Initial Closing Date and as of each Funding Date:
(a) Material Adverse Effect. Since the immediately preceding Funding Date (and (i) in the case of the Initial Closing Date, since June 30, 2017 and (ii) in the case of the Initial Addition Date, since the Initial Closing Date), no event has occurred that would have a Material Adverse Effect.
(b) Compliance with Credit and Collection Policies. It has complied in all material respects with the Credit and Collection Policies with regard to each Contract and the related Receivables and Related Rights. It has not made any change to such Credit and Collection Policies, other than as permitted under Section 4.7(u) hereof.
(c) Anti-Corruption Laws and Sanctions. It has implemented and maintains in effect policies and procedures designed to ensure compliance by it and its Subsidiaries, directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and it, each of its respective Subsidiaries, its respective officers and employees, and to its knowledge, its respective directors and agents, is in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of it, any of its Subsidiaries or any director, officer, employee, agent or affiliate of it or any of its Subsidiaries that will act in any capacity in connection with or benefit from the facility established hereby, is a Sanctioned Person. No Note Principal Balance Increase, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(d) Authority. It is duly qualified to do business and is in good standing (or is exempt from such requirements) in each State of the United States where the nature of its business requires it to be so qualified and the failure to be so qualified and in good standing would have a Material Adverse Effect on the interests of the Owners.
(e) ERISA. (i) Each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan, and (ii) no ERISA Event has occurred.
SECTION 4.3 Additional Representations and Warranties of the Transferor. The Transferor represents and warrants to the Owners, the Managing Agents and the Administrative Agent that as of the Initial Closing Date and as of each Funding Date:
(a) Issuer Existence and Authorization. The Issuer has been duly created and is validly existing under the laws of the State of Delaware, and the Transferor has authorized the Issuer to issue the Series 2017-VFN Notes.
(b) Investment Letter. Assuming the continuing accuracy of the representations set forth in the Investment Letter(s) delivered pursuant to this Agreement, the sale of any Series 2017-VFN Notes pursuant to the terms of this Agreement, the Indenture and the Series 2017-VFN Supplement will not require registration of such Series 2017-VFN Notes under the Securities Act.
(c) Series 2017-VFN Notes. The Series 2017-VFN Notes have been duly and validly authorized, and, when executed and authenticated in accordance with the terms of the Indenture and the Series 2017-VFN Supplement, and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Indenture and the Series 2017-VFN Supplement.
(d) Ownership of the Equity Certificate. The Transferor owns of record the Equity Certificate free and clear of all Liens, warrants, options and rights to purchase.
SECTION 4.4 [Reserved].
SECTION 4.5 Representations and Warranties of the Conduit Purchasers and Committed Purchasers. Each Conduit Purchaser and Committed Purchaser (each with respect to itself only)
hereby makes the following representations and warranties to the Issuer, the Transferor and the Performance Guarantor.
(a) Qualified Institutional Buyer. It is a qualified institutional buyer as defined in Rule 144A of the Securities Act of 1933, as amended.
(b) Investment Letter. It agrees with the Transferor that it and its related Managing Agent will execute and deliver to the Transferor on or before the Initial Closing Date the Investment Letter with respect to the acquisition of (and, if applicable, the initial funding of) the Series 2017-VFN Notes. It understands and agrees that receipt by the Transferor of a duly executed Investment Letter is a condition precedent to the Transferors obligations hereunder to accept the initial fundings under the Series 2017-VFN Notes.
SECTION 4.6 Covenants of the Issuer and Transferor. Each of the Issuer and the Transferor severally covenants and agrees, in each case as to itself individually or in such respective capacities, each with respect to itself only, through the Series 2017-VFN Stated Maturity Date, that:
(a) Compliance with Covenants. It will perform and observe for the benefit of the Owners each of the covenants and agreements required to be performed or observed by it in this Agreement and in the Transaction Documents to which it is a party.
(b) Maintain Existence. It will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in good standing as a foreign trust or limited liability company in each jurisdiction where its business is conducted, and will obtain and maintain all requisite authority to conduct its business in each jurisdiction in which its business requires such authority.
(c) Compliance with Requirements of Law. It shall comply in all material respects with all Requirements of Law and preserve and maintain its existence, rights, franchises, qualifications, and privileges except to the extent that the failure so to comply with such applicable Requirements of Law or the failure so to preserve and maintain such existence, rights, franchises, qualifications and privileges would not materially adversely affect the collectibility of the Receivables, its ability to conduct its business or its ability to perform its obligations under the Transaction Documents in all material respects.
(d) Ownership. It shall take all necessary action to (i) vest legal and equitable title to the Receivables, Related Rights and Collections on such Receivables irrevocably in the Issuer, free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Issuers interest in such Receivables, Related Rights and Collections on such Receivables and such other action to perfect, protect or more fully evidence the interest of Issuer therein as the Administrative Agent or the Indenture Trustee, acting at the written direction of the Requisite Global Majority, may reasonably request), and (ii) cooperate (as the Indenture Trustee, acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request) in the establishment and maintenance, in favor of the Indenture Trustee (for the benefit of the Owners),
of a valid and perfected first priority perfected security interest in the Collateral to the full extent contemplated herein and within the Indenture, free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Indenture Trustees security interest in the Collateral and such other action to perfect, protect or more fully evidence the interest of the Indenture Trustee (for the benefit of the Owners) as the Indenture Trustee, acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request.
(e) Furnish Certain Information; Further Assurances. It will furnish (or cause to be furnished) to each Managing Agent: (i) promptly after the execution thereof, copies of all amendments of and waivers with respect to the Transaction Documents; (ii) copies of all financial statements that the Transferor or the Issuer furnished (or required to be furnished) pursuant to the Transaction Documents concurrently therewith; (iii) a copy of each material certificate, report, statement, notice or other communication furnished (or required to be furnished) by or on behalf of the Transferor or the Issuer pursuant to the Transaction Documents concurrently therewith; (iv) a copy of each material notice, demand or other communication furnished (or required to be furnished) by or on behalf of the Transferor or the Issuer pursuant to the Transaction Documents concurrently therewith; and (v) such other information, documents, records or reports respecting the Trust Assets, the related Obligors, the Transferor or the Issuer which is in the possession or under the control of the Transferor or the Issuer, as applicable, as any such Managing Agent may from time to time reasonably request.
(f) No Liens. Except for the conveyances under the Transaction Documents, it will not sell, pledge, assign (by operation of law or otherwise) or transfer to any other Person, or otherwise dispose of, or grant, create, incur, assume or suffer to exist any Lien on, any Receivable, Related Rights or Collections on such Receivables, whether now existing or hereafter created, or any interest therein, or assign any right to receive income in respect thereof, or take any other action inconsistent with the Issuers ownership of, the Receivables, Related Rights and Collections on such Receivables, except to the extent arising under any Transaction Document, and it shall defend the right, title and interest of the Issuer and the Indenture Trustee in, to and under the Receivables, the Related Rights and the Collections on such Receivables, whether now existing or hereafter created, against all claims of third parties claiming through or under USCC or its assigns.
(g) Name Change, Offices and Records. It will not make any change to its name (within the meaning of Section 9-507 of any applicable enactment of the UCC), type or jurisdiction of organization or location of its books and records unless, at least thirty (30) days prior to the effective date of any such name change, change in type or jurisdiction of organization, or change in location of its books and records it notifies the Issuer, the Indenture Trustee, the Servicer and the Administrative Agent thereof and (except with respect to a change of location of books and records) delivers to the Indenture Trustee (i) such financing statements (Forms UCC-1 and UCC-3) which the Indenture Trustee (or its assigns), acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request to reflect such name change, or change in type or jurisdiction of organization, (ii) if the Administrative Agent shall so request, an opinion of counsel, in form and substance reasonably satisfactory to such Person, as to the perfection and priority of the Issuers ownership interest in,
and the Indenture Trustees security interest in the Receivables, Related Rights and Collections on such Receivables and (iii) such other documents, agreements and instruments that the Indenture Trustee, acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request in connection therewith.
(h) Protection of Noteholders Rights. It will take no action, nor omit to take any action, which could reasonably be expected to materially impair the rights of the Administrative Agent, the Managing Agents, the Owners and the Noteholders in the Receivables and the Related Rights granted pursuant to the Indenture, or materially adversely affect the collectability of the Trust Assets, or reschedule, revise or defer payments due on any Receivable, or amend, modify or waive in any material respect any term or condition relating to payments due on any Receivable, or modify the terms of any Receivable in a manner that would result in the dilution of such Receivable or that would otherwise prevent such Receivable from being an Eligible Receivable, except (i) in accordance with the Credit and Collection Policies (ii) as ordered by a court of competent jurisdiction or other Governmental Authority, (iii) such Receivable is deemed not to be an Eligible Receivable and such event does not result in an Asset Base Deficiency, (iv) with the prior consent of the Administrative Agent and each Managing Agent or (v) pursuant to Requirements of Law.
(i) Inspection. It shall cooperate with USCC, the Administrative Agent and each Managing Agent in connection with any Inspection pursuant to Section 4.7(f); provided, that any such inspection of the Transferor or the Issuer shall occur at the same time as any Inspection of USCC pursuant to Section 4.7(f).
(j) Fulfillment of Obligations. It will (i) duly observe and perform, or cause to be observed or performed, all material obligations and undertakings on its part to be observed and performed under this Agreement, the Transaction Documents and the Receivables, (ii) subject to the terms hereof and the Credit and Collection Policies, duly observe and perform all material provisions, covenants and other promises required to be observed by it under the Receivables, and (iii) pay when due (or contest in good faith) any taxes, including without limitation any sales tax, excise tax or other similar tax or charge, payable by the Transferor in connection with the Receivables and their creation and satisfaction.
(k) Enforcement. It will take all action necessary and appropriate to enforce its rights and claims under the Transaction Documents.
(l) Notices. It will notify each Managing Agent in writing of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, such written notice shall be accompanied by a statement of the chief financial officer or chief accounting officer of the Transferor describing the steps, if any, being taken with respect thereto:
(i) any Asset Base Deficiency, Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default, but in any event within five (5) days;
(ii) the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Issuer or the Transferor which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or the entry of any judgment or decree or the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Issuer or the Transferor which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, but in any event within ten (10) Business Days;
(iii) any Lien made or asserted against any Receivable, Related Right or other Collateral other than conveyances under the Receivables Purchase Agreement, the Transfer and Servicing Agreement and the Indenture; and
(iv) any Material Adverse Effect.
(m) Transfer of Equity Certificate. The Transferor shall not transfer any Equity Certificate issued pursuant to the Trust Agreement and held by it to any other Person.
(n) Eligible Interest Rate Caps. The Transferor (i) entered into an Eligible Interest Rate Cap on the Initial Closing Date and (ii) shall at all times maintain in full force and effect the Eligible Interest Rate Caps or any other hedging agreements in accordance with the Hedging Requirements specified on Exhibit G hereto.
(o) Statement for and Treatment of Sales. The Transferor shall not treat any transfer of Receivables, Related Rights and Collections on such Receivables by USCC to the Transferor under the Receivables Purchase Agreement in any manner other than as a sale for all purposes (other than tax purposes).
(p) Compliance and Separateness.
(i) During the term of this Agreement, the Transferor will, subject to the terms of this Agreement, keep in full force and effect its existence, rights and franchises as a limited liability company under the laws of the jurisdiction of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the other Transaction Documents to which it is a party, and each other instrument or agreement necessary or appropriate to the proper administration of this Agreement and the transactions contemplated thereby.
(ii) Except as otherwise provided in the Transaction Documents, during the term of this Agreement the Transferor will observe the following applicable legal requirements for the recognition of the Transferor as a legal entity separate and apart from its Affiliates, and the Transferor shall:
(1) maintain books and records separate from any other person or entity;
(2) maintain its own deposit, securities and other account or accounts, separate from any other person or entity, with financial institutions;
(3) ensure that, to the extent it jointly contracts with any of its members or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs;
(4) conduct its affairs strictly in accordance with its limited liability company agreement and observe all necessary, appropriate and customary company formalities;
(5) ensure that its board of directors shall at all times include at least one Independent Director;
(6) not commingle its assets with those of any other person or entity;
(7) conduct its business (i) in its own name and not that of an Affiliate, and (ii) to the extent it maintains office space, from an office separate from that of the member (but which may be located in the same facility as and leased from the member) at which will be maintained its own separate limited liability company books and records;
(8) other than as contemplated herein, in the Receivables Purchase Agreement or in one of the Transaction Documents and related documentation, pay its own liabilities and expenses only out of its own funds;
(9) observe all formalities required under the Delaware Limited Liability Company Act;
(10) not guarantee or become obligated for the debts of any other person or entity;
(11) ensure that no Affiliate of the Transferor shall advance funds to the Transferor, and no Affiliate of the Transferor will otherwise guaranty debts of the Transferor;
(12) not hold out its credit as being available to satisfy the obligation of any other person or entity;
(13) not acquire the obligations or securities of its Affiliates;
(14) not make loans to any other person or entity or buy or hold evidence of indebtedness issued by any other person or entity;
(15) other than as contemplated herein, in the Receivables Purchase Agreement or in one of the Transaction Documents and related documentation, not pledge its assets for the benefit of any other person or entity;
(16) hold itself out as a separate entity from its Affiliates and not conduct any business in the name of any of its Affiliates;
(17) correct any known misunderstanding regarding its separate identity;
(18) ensure that decisions with respect to its business and daily operations shall be independently made by the Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of the Transferor) and shall not be dictated by an Affiliate of the Transferor;
(19) other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds;
(20) not identify itself as a division of any other person or entity;
(21) conduct business with its Affiliates on an arms-length basis on terms no more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties;
(22) not engage in any business or activity of any kind, or enter into any transaction, indenture, mortgage, instrument, agreement, contract, lease or other undertaking which is not directly related to the transactions contemplated and authorized by this Agreement or the other Transaction Documents; and
(23) comply with the limitations on its business and activities as set forth in its certificate of formation and shall not incur indebtedness other than pursuant to or as expressly permitted by the Transaction Documents.
SECTION 4.7 Covenants of the Servicer. The Servicer covenants and agrees through the Series 2017-VFN Stated Maturity Date, that:
(a) Compliance with Covenants. The Servicer will perform and observe for the benefit of the Owners each of the covenants and agreements required to be performed or observed by it in the Transaction Documents to which it is a party.
(b) Furnish Certain Information. The Servicer will furnish (or cause to be furnished) to each Managing Agent: (i) promptly after the execution thereof, copies of all amendments of and waivers with respect to the Transaction Documents; (ii) copies of all financial statements, compliance certificates and other financial reports that the Servicer, the Seller, any Originator or the Servicer furnished (or required to be furnished) pursuant to the Transaction Documents concurrently therewith; (iii) a copy of each certificate, report, statement, notice or other communication furnished (or required to be furnished) by or on behalf of the Servicer, the Seller, any Originator, the Transferor, the Issuer or the Servicer to the Issuer, the Servicer, the Administrative Agent or the Indenture Trustee pursuant to the Transaction Documents concurrently therewith; (iv) a copy of each material notice, demand or other communication furnished (or required to be furnished) by or on behalf of the Servicer, the Seller, any Originator, the Transferor, the Issuer, the Servicer or the Indenture Trustee pursuant to the Transaction Documents concurrently therewith; and (v) such other information, documents, records or reports respecting the Trust Assets, the Obligors, the Servicer, the Seller, any Originator or the Servicer, or the condition or operations, financial or otherwise, of the Servicer, the Seller and the Originators, which is in the possession or under the control of the Servicer, as any such Managing Agent may from time to time reasonably request.
(c) Reporting. The Servicer will maintain a system of accounting established and administered in accordance with GAAP, and furnish or cause to be furnished to the Indenture Trustee and each Managing Agent at least ten (10) days prior to the effectiveness of any material change in or material amendment to the Credit and Collection Policies, a copy of the Credit and Collection Policies then in effect and a notice (i) indicating such change or amendment, and (ii) if such proposed change or amendment would be reasonably likely to materially adversely affect the collectability of the Receivables (or any Related Rights), or materially decrease the credit quality of any newly created Receivables, requesting the consent of the Administrative Agent and the Managing Agents thereto pursuant to Section 4.7(u).
(d) Notices. The Servicer will notify each Managing Agent in writing of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, such written notice shall be accompanied by a statement of the chief financial officer or chief accounting officer of the Servicer describing the steps, if any, being taken with respect thereto:
(i) any Asset Base Deficiency, Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default, and in any event within five (5) days;
(ii) the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Servicer, the Seller, any Originator or
any of their respective subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or the entry of any judgment or decree or the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Servicer, the Seller, any Originator or any of their respective subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and in any event within ten (10) Business Days;
(iii) any Lien made or asserted against any Receivable, Related Rights or other Collateral, other than conveyances under the Receivables Purchase Agreement, the Transfer and Servicing Agreement and the Indenture;
(iv) the decision to appoint a new director or manager of the Transferor as the Independent Director for purposes of this Agreement, such notice to be issued not less than ten (10) days prior to the effective date of such appointment and to certify that the designated Person satisfies the criteria set forth in the definition herein of Independent Director; and
(v) any Material Adverse Effect or any event which would be reasonably likely to have a Material Adverse Effect.
(e) Compliance with Requirements of Law. The Servicer shall duly satisfy all obligations on its part to be fulfilled under or in connection with the Trust Assets and the related Receivables, shall maintain in effect all material qualifications required under applicable Requirements of Law in order to properly service the Trust Assets and the related Receivables and shall comply in all material respects with all other applicable Requirements of Law in connection with servicing the Trust Assets and the related Receivables.
(f) Inspections. The Servicer shall furnish to each Managing Agent from time to time such information with respect to it and the Trust Assets as such Managing Agent may reasonably request. The Servicer will, and will cause each of USCC, the Transferor, the Issuer and the Seller to, from time to time at the sole cost and expense of the Servicer, and during regular business hours upon reasonable prior notice, permit the Administrative Agent and the Managing Agents (or their respective agents or representatives), not more than twice per calendar year unless an Asset Base Deficiency, Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default has occurred and is continuing, to visit and inspect any of its properties (or the properties of the Seller or any Originator), to examine and make abstracts from any of its books and records (including, without limitation, computer files and records) in the possession or under the control of the Seller, any Originator, the Servicer, the Transferor or the Issuer relating to the Trust Assets and the related Receivables, Contracts and Obligors, and to discuss its affairs, finances and accounts with its officers, directors, employees and independent public accountants (such visit, inspection and examination, collectively, an Inspection). From and after the occurrence of an Asset Base Deficiency, Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default, the Administrative Agent shall be entitled to conduct an unlimited number of Inspections at the expense of the Servicer. Nothing in this Section 4.7(f) shall derogate from the obligation of the Administrative Agent or the Servicer, the
Seller or any Originator to observe any applicable Requirement of Law prohibiting disclosure of information regarding the Obligors, and the failure of the Servicer, the Seller or any Originator to provide access as provided in this Section 4.7(f) as a result of such obligation shall not constitute a breach of this Section 4.7(f).
(g) Maintenance of Records and Books. The Servicer shall, and shall cause the Seller and each Originator to (if applicable), maintain and implement administrative and operating procedures (including the ability to recreate records evidencing the Receivables (and the Related Rights) in the event of the destruction of the originals thereof), and keep and maintain all documents, books, computer records and other information, reasonably necessary or advisable for the collection of all the Trust Assets. Such documents, books and computer records shall reflect all facts giving rise to the Receivables (and the Related Rights), all payments and credits with respect thereto, and such documents, books and computer records shall identify the Trust Assets clearly and unambiguously to reflect that the Trust Assets are owned by the Issuer and pledged to the Indenture Trustee. The Servicer will give the Administrative Agent and each Managing Agent prompt notice of any material change in the administrative and operating procedures referred to in the previous sentence, to the extent such change is likely to have a Material Adverse Effect.
(h) Compliance with Credit and Collection Policies. The Servicer will, and will cause the Seller and each Originator to (as applicable), timely and fully (i) perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Contracts related to the Trust Assets, and (ii) comply in all material respects with the Credit and Collection Policies in regard to the Trust Assets and the related Contracts.
(i) Ownership. The Servicer shall, and shall cause the Seller and each Originator to (as applicable), take all necessary action to (i) vest legal and equitable title to the Receivables, Related Rights and Collections on such Receivables irrevocably in the Issuer, free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Issuers interest in such Receivables, Related Rights and Collections on such Receivables and such other action to perfect, protect or more fully evidence the interest of Issuer therein as the Administrative Agent or the Indenture Trustee, acting at the written direction of the Requisite Global Majority, may reasonably request), and (ii) cooperate (as the Indenture Trustee, acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request) in the establishment and maintenance, in favor of the Indenture Trustee (for the benefit of the Owners), of a valid and perfected first priority perfected security interest in the Collateral to the full extent contemplated herein and within the Indenture, free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Indenture Trustees security interest in the Collateral and such other action to perfect, protect or more fully evidence the interest of the Indenture Trustee (for the benefit of the Owners) as the Indenture Trustee, acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request).
(j) Collections. The Servicer shall instruct all Obligors on the Receivables to remit all payments with respect to the Trust Assets directly to the Servicer. The Servicer will not instruct any Obligor to make payments in respect of the Receivables or the other Trust Assets to any Person, address or location other than to the Servicer. The Servicer shall not make any change in its instructions to Obligors regarding payments to be made to it (other than changes with respect to the mailing addresses for remittances) unless the Managing Agents shall have received, at least ten (10) Business Days before the proposed effective date therefore, written notice of such change. In the event that any payment relating to the Trust Assets is remitted directly to the Seller or any Originator, the Servicer will, and will cause the Seller or such Originator to, cause such payments to be remitted directly to an account specified by the Servicer within two (2) Business Days following receipt thereof without deposit into any intervening account and, at all times prior to such remittance, the Servicer or the Seller or the applicable Originator will hold or will cause such payment to be held in trust for the exclusive benefit of the Indenture Trustee and the Noteholders.
(k) Protection of Noteholders Rights. The Servicer shall, and shall cause the Seller and each Originator to, take no action, nor omit to take any action, which could reasonably be expected to materially impair the rights of the Noteholders in the Receivables or materially adversely affect the collectability of the Trust Assets.
(l) [Reserved].
(m) ERISA Reporting and Covenant.
(i) Promptly upon becoming aware of the occurrence of any ERISA Event which together with all other ERISA Events occurring within the prior twelve (12) months could reasonably be expected to involve a payment of money by or an aggregate liability of any member of the ERISA Group or any combination of such entities in excess of $10,000,000, the Servicer shall give the Administrative Agent and each Managing Agent a written notice specifying the nature thereof, what action the Servicer or any member of the ERISA Group has taken and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto.
(ii) Promptly upon receipt thereof, the Servicer shall furnish to the Administrative Agent and each Managing Agent copies of (x) all notices received by any member of the ERISA Group of the PBGCs intent to terminate any Plan or to have a trustee appointed to administer any Plan; (y) all notices received by any member of the ERISA Group from the sponsor of a Multiemployer Plan pursuant to Section 4202 of ERISA involving an aggregate withdrawal liability of such member of any other member or members of the ERISA Group in excess of $10,000,000; and (z) all funding waiver requests filed by any member of the ERISA Group with the Internal Revenue Service with respect to any Plan.
(iii) The Servicer shall not permit any event or condition which is described in the definition of ERISA Event to occur or exist with respect to any Plan or Multiemployer Plan if such event or condition, together with all other events or
conditions described in the definition of ERISA Event occurring within the prior twelve (12) months, involves the payment of money by or an incurrence of liability of the Servicer or any member of the ERISA Group in an aggregate amount that would have a Material Adverse Effect on the Servicer or the Issuer
(n) Taxes. The Servicer will, or will cause USCC to, file all tax returns and reports required by law to be filed by it (or the Seller) and will promptly pay all material taxes and governmental charges at any time owing by it, except any such taxes which are not yet delinquent or are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(o) Separate Existence. The Servicer will take all reasonable steps (including, without limitation, all steps necessary or that the Administrative Agent may from time to time reasonably request) to maintain the Sellers, the Transferors and the Issuers identity as a separate legal entity from it and to make it manifest to third parties that each of the Transferor and the Issuer is an entity with assets and liabilities distinct from those of it and each of its other Affiliates.
(p) Further Assurances. Subject to Section 4.7(b), the Servicer shall, or shall cause the Seller or any Originator to, furnish the Administrative Agent, any Managing Agent or the Indenture Trustee from time to time such statements and schedules further identifying and describing the Trust Assets and such other reports or other information reasonably related to this Agreement in connection with the Trust Assets as the Administrative Agent, such Managing Agent or the Indenture Trustee, acting at the written direction of the Requisite Global Majority, may reasonably request, all in reasonable detail.
(q) Independent Accountants Reports and Servicing Reviews. In the event that any report, compliance statement or attestation, including the reports of the independent accountants, prepared pursuant to the Transaction Documents discloses or identifies any material weakness, deficiency or other adverse occurrence relating to the performance of any Originators, the Sellers, the Servicers or the Transferors obligations pursuant to the Transaction Documents, then the Servicer shall, and shall cause the applicable Originator, the Seller or the Transferor to, as applicable, use commercially reasonable efforts as promptly as reasonably possible to remedy, cure or correct the issues giving rise to such disclosure.
(r) No Liens. Except for the conveyances under the Transaction Documents, the Servicer, the Seller and the Originators will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on, any Receivable, the Related Rights or Collections on such Receivables, whether now existing or hereafter created, or any interest therein, and the Servicer shall (and shall cause the Seller and the Originators to) defend the right, title and interest of the Issuer and the Indenture Trustee in, to and under the Receivables, the Related Rights and the Collections on such Receivables, whether now existing or hereafter created, against all claims of third parties claiming through or under USCC, the Seller, any Originator or their respective assigns.
(s) Name Change, Offices and Records. USCC will not, and shall cause the Seller and the Originators not to, make any change to its name (within the meaning of Section 9-
507 of any applicable enactment of the UCC), type or jurisdiction of organization or location of its books and records unless, at least thirty (30) days prior to the effective date of any such name change, change in type or jurisdiction of organization, or change in location of its books and records USCC notifies the Issuer, the Indenture Trustee and the Administrative Agent thereof and (except with respect to a change of location of books and records) delivers to the Indenture Trustee (i) such financing statements (Forms UCC-1 and UCC-3) which the Indenture Trustee (or its assigns), acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request to reflect such name change, or change in type or jurisdiction of organization, (ii) if the Administrative Agent shall so request, an opinion of counsel, in form and substance reasonably satisfactory to such Person, as to the perfection and priority of the Issuers ownership interest in, and the Indenture Trustees security interest in the Receivables, Related Rights and Collections on such Receivables and (iii) such other documents, agreements and instruments that the Indenture Trustee, acting at the written direction of the Requisite Global Majority, or the Administrative Agent may reasonably request in connection therewith.
(t) Third Party Reviews; Reports. In addition to the reports prepared pursuant to Section 3.04 and Section 3.05 of the Transfer and Servicing Agreement, (i) If a Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default is not continuing, then once per year (A) on or prior to April 30 (beginning April 30, 2018), or (B) on or prior to such other date as the Administrative Agent, each Managing Agent and the Transferor may mutually agree, or (ii) if a Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default has occurred and is continuing, then at such frequency and on such dates as the Administrative Agent may request, but not more frequently than once per calendar quarter, the Administrative Agent and each Managing Agent shall receive a written report delivered by an independent accounting firm reasonably acceptable to the Administrative Agent and each Managing Agent addressing such procedures and scope identified on Annex I hereto, or otherwise addressing such additional procedures and scope reasonably requested by the Administrative Agent and the Managing Agents from time to time and consented to by the Transferor (which consent shall not be unreasonably withheld). The procedures performed and written report prepared with respect thereto shall be at the expense of the Servicer and shall be in form and substance satisfactory to the Administrative Agent and each Managing Agent.
(u) Modifications to Credit and Collection Policies. The Servicer will not, and shall cause the Seller and each Originator not to, without the prior written consent of the Administrative Agent and each of the Managing Agents, make any change in, or amendment to, the Credit and Collection Policies or the Contracts (or any form of Contract) if such proposed change or amendment would be reasonably likely to materially adversely affect the collectability of the Receivables (or any Related Rights), materially decrease the credit quality of any newly originated Receivables or have a Material Adverse Effect on the Series 2017-VFN Noteholders. At least ten (10) days prior notice of the effectiveness of any change in, or amendment to, the Contracts or the Credit and Collection Policies that would be reasonably likely to materially adversely affect the collectability of the Receivables (or any Related Rights) or materially decrease the credit quality of any newly created Receivables or have a Material Adverse Effect on the Series 2017-VFN Noteholders, the Servicer shall furnish to the Administrative Agent and the Managing Agents a notice indicating such proposed change or amendment, together with a
request for the consent of the Administrative Agent and the Managing Agents thereto. Not later than one week following any other change in, or amendment to, the Contracts or the Credit and Collection Policies, the Servicer shall furnish to the Administrative Agent and the Managing Agents a copy of the Contracts or the Credit and Collection Policies, as applicable, then in effect, together with a notice indicating such change or amendment.
(v) Extension or Amendment of Receivables. The Servicer will not, and will cause the Seller and the Originators not to, extend, rescind, cancel, amend or otherwise modify the terms of any Receivable (or any Related Rights), including rescheduling, revising or deferring payments due on any Receivable, except in each case as would not individually or in the aggregate materially adversely affect the Administrative Agent, the Managing Agents, the Owners or the Noteholders, or in accordance with the Credit and Collection Policies and the Transfer and Servicing Agreement, or as ordered by a court of competent jurisdiction or other Governmental Authority, or with the prior consent of the Administrative Agent and each Managing Agent, or pursuant to Requirements of Law.
(w) Limitation on Transactions with the Transferor and the Issuer. The Servicer will not, and shall cause the Seller and the Originators not to, enter into, or be a party to any transaction with the Transferor or the Issuer, except for (i) the transactions contemplated by this Agreement and the other Transaction Documents; and (ii) to the extent not otherwise prohibited under the Transaction Documents, other transactions in the nature of employment contracts and directors fees, upon fair and reasonable terms materially no less favorable to the Transferor or the Issuer than would be obtained in a comparable arms length transaction with a Person not an Affiliate.
(x) Accounting. The Servicer will not, and will not permit any Affiliate to, account for or treat (whether in financial statements or otherwise) the transactions contemplated by the Receivables Purchase Agreement and the Transfer and Servicing Agreement in any manner other than the sales and contributions of the Purchased Assets by the Seller to the Transferor, and the transfers of the Transferred Assets by the Transferor to the Issuer, or in any other respect account for or treat the transactions contemplated hereby in any manner other than as sales of such Purchased Assets to the Transferor and transfers of such Transferred Assets to the Issuer, except to the extent that such transactions are not recognized on account of consolidated financial reporting in accordance with GAAP.
(y) Receivables Schedules. The Servicer shall deliver (or cause to be delivered) to the Administrative Agent the initial Receivables Schedule delivered to the Indenture Trustee on the Initial Addition Date and each updated or supplemented Receivables Schedule and Contract Additions Report delivered to the Indenture Trustee pursuant to the Transaction Documents on each Determination Date or Addition Date, as applicable (which delivery may occur in electronic format).
(z) Maintain Existence. The Servicer will, and will cause the Seller and each Originator to, preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a corporation in each jurisdiction where its business is conducted, and will maintain all requisite
authority to conduct its business in each jurisdiction in which its business requires such authority.
(aa) Fulfillment of Obligations. The Servicer will, and will cause the Seller and each Originator to, (i) duly observe and perform, or cause to be observed or performed, all material obligations and undertakings on its part to be observed and performed under this Agreement, the Transaction Documents and the Receivables, (ii) subject to the terms hereof and the Credit and Collection Policies, duly observe and perform all material provisions, covenants and other promises required to be observed by it under the Receivables, (iii) do nothing to materially impair the rights, title and interest of the Owners in and to the Collateral and (iv) pay when due (or contest in good faith) any taxes, including without limitation any sales tax, excise tax or other similar tax or charge, payable by the Servicer, the Seller or any Originator in connection with the Receivables and their creation and satisfaction.
(bb) Total Systems Failure. The Servicer shall promptly notify the Administrative Agent and each Managing Agent of any total failure of any systems necessary for the performance of its servicing obligations under the Transaction Documents (a total systems failure) and shall advise the Administrative Agent and each Managing Agent of the estimated time required to remedy such total systems failure and of the estimated date on which a Monthly Report can be delivered. Until a total systems failure is remedied, the Servicer shall (i) furnish to the Administrative Agent and each Managing Agent such periodic status reports and other information relating to such total systems failure as the Administrative Agent and any Managing Agent may reasonably request and (ii) promptly notify the Administrative Agent and each Managing Agent if the Servicer believes that such total systems failure cannot be remedied by the estimated date, which notice shall include a description of the circumstances which gave rise to such delay, the action proposed to be taken in response thereto, and a revised estimate of the date on which the Monthly Report can be delivered. The Servicer shall promptly notify the Administrative Agent and each Managing Agent when a total systems failure has been remedied.
(cc) Insurance. The Servicer shall, or shall cause USCC to, for itself and the Seller, keep insured by financially sound and reputable insurers all property of a character usually insured by companies engaged in the same or similar business similarly situated against loss or damage of the kinds and in the amounts customarily insured against by such companies, and carry such other insurance as is usually carried by such companies.
(dd) Modification of Systems. The Servicer agrees, promptly after the replacement or any material modification of any computer system, automation system or other operating system (in respect of hardware or software) used to perform the Servicers material services as servicer or to make any calculations or reports hereunder or under the Transaction Documents, to give notice of any such replacement or modification to the Administrative Agent and each Managing Agent.
(ee) Monthly Report. In addition to the information required to be included in each Monthly Report pursuant to Section 5.3 of the Indenture Supplement, the Servicer shall include in each Monthly Report relating to the Series 2017-VFN Notes, such other information or calculations relating to the Receivables owned by the Issuer on an aggregate basis as the Administrative Agent may reasonably request.
(ff) Keeping of Records and Books of Account. The Servicer will, or will cause each of the Seller and the Originators to, as applicable, maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Transferred Assets in the event of the destruction of the originals thereof), and keep safely for the benefit of the Owners all records, and keep and maintain, or obtain, as and when required, all documents, books, records and other information reasonably necessary or advisable for the identification and collection of all Transferred Assets (including, without limitation, records adequate to permit the identification of all Collections in respect of and adjustments to each existing Transferred Asset).
(gg) Customer List. The Servicer will, or will cause each of the Seller and the Originators to, as applicable, at all times maintain a current list (which may be stored on magnetic tapes or disks) of all Obligors under Contracts related to Transferred Assets, including the name, address, telephone number and contract identification number of each such Obligor.
(hh) Compliance Certificate. Together with the annual report required under Section 4.9(b)(i), the Servicer shall furnish to the Administrative Agent and each Managing Agent a compliance certificate in substantially the form of Exhibit C hereto signed by the chief accounting officer or treasurer of the Servicer stating that no Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default exists, or if any such event exists, stating the nature and status thereof.
(ii) Servicer Statements and Reports. The Servicer shall deliver to the Administrative Agent and each Managing Agent each certificate and other report of the Servicer prepared pursuant to Section 3.04 and Section 3.05 of the Transfer and Servicing Agreement. In the event that the Servicer or one of its Affiliates is no longer acting as Servicer, the Servicer agrees to cause any Successor Servicer to deliver or make available to the Administrative Agent and each Managing Agent each certificate and report to be provided thereafter pursuant to Section 3.04 and Section 3.05 of the Transfer and Servicing Agreement or otherwise under this Agreement.
(jj) Compliance with Requirements of Law. The Servicer shall, and shall cause the Seller and each Originator to, duly satisfy all obligations on its part to be fulfilled under or in connection with each Receivable and the related Contract, if any, and will maintain in effect all qualifications and licenses required under Requirements of Law in order to service properly each Receivable and the related Contract, if any, and will comply in all material respects with all other Requirements of Law in connection with servicing the Receivables, except to the extent the failure to so comply would not have a Material Adverse Effect.
(kk) Access to Certain Documentation and Information Regarding the Receivables. In addition to any rights the Series 2017-VFN Noteholders may have pursuant to Section 6.08 of the Transfer and Servicing Agreement, the Servicer shall provide to the Administrative Agent access to the documentation regarding the Receivables in such cases where the Administrative Agent is required in connection with the enforcement of the rights of Owners or by applicable statutes or regulations to review such documentation, such access being afforded without charge but only (a) upon reasonable request, (b) during normal business hours, (c) subject to the Servicers normal security and confidentiality procedures, (d) at reasonably
accessible offices in the continental United States designated by the Servicer, and (e) once per calendar year. Nothing in this Section 4.7(kk) shall derogate from the obligation of the Transferor, the Administrative Agent and the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of the Servicer to provide access as provided in this Section 4.7(kk) as a result of such obligation shall not constitute a breach of this Section 4.7(kk).
(ll) Examination of Records. The Servicer shall cause the Originators and the Seller to indicate in their computer files or other records that the Transferred Assets have been conveyed from the applicable Originator to the Seller pursuant to the Receivables Sale Agreement, and from the Seller to the Transferor pursuant to the Receivables Purchase Agreement. The Servicer shall cause the Originators and the Seller to, prior to the sale or transfer to a third party of any receivable held in its custody, examine its computer records and other records to determine that such receivable is not, and does not include, a Transferred Asset sold to the Transferor and transferred to the Issuer (for the benefit of the Owners).
SECTION 4.8 [Reserved].
SECTION 4.9 Additional Covenants of the Transferor and the Servicer. Each of the Transferor and the Servicer severally covenants and agrees, in each case as to itself individually or in such respective capacities, each with respect to itself only, unless otherwise consented to or waived in accordance with the provisions of Section 7.1, that:
(a) Ratings of Commercial Paper Notes. To the extent that any rating provided with respect to a Conduit Purchasers Commercial Paper Notes by any rating agency is conditional upon the furnishing of documents or the taking of any other action by the Transferor or the Servicer, then such party, as applicable, shall take all reasonable actions to furnish such documents and take any such other action.
(b) Information from the Seller, the Originators, the Transferor and the Servicer. So long as any Series 2017-VFN Notes remain outstanding, each of the Transferor and the Servicer will, and will cause the Performance Guarantor to, furnish to the Administrative Agent and each Managing Agent:
(i) a copy of each certificate, opinion, report, statement, notice or other communication (other than investment instructions) furnished by or on behalf of such party to the Indenture Trustee or any Rating Agency under the Indenture or the Series 2017-VFN Supplement or any other Transaction Document, concurrently therewith, and promptly after receipt thereof, a copy of each notice, demand or other communication received by or on behalf of such party under the Indenture or the Series 2017-VFN Supplement; and
(ii) such other information (including non-financial information), documents, records or reports reasonably related to the Transaction Documents or the transactions contemplated thereby and respecting the Issuer, the Receivables, the Transferor, the Seller, the Originators, the Performance Guarantor and the Servicer, as the
Administrative Agent, any Conduit Purchaser or any Managing Agent may from time to time reasonably request.
(iii) promptly following the sending or filing thereof, copies of all registration statements which the Transferor, USCC, the Seller, the Performance Guarantor or the Servicer files with the Commission or any national securities exchange in connection with the Issuer, the Indenture, the Series 2017-VFN Supplement or any Series 2017-VFN Notes.
(c) Amendments. None of any Originator, the Seller, the Transferor or the Servicer will make, or permit any Person to make, any amendment, modification or change to, or provide any waiver under the Transaction Documents except in accordance with Section 7.1(c).
(d) Prohibition on Indebtedness. Except as permitted by the Transaction Documents, the Transferor agrees that during the term of this Agreement, it shall not incur any indebtedness, or assume or guarantee indebtedness of any other entity, without the consent of Managing Agents representing Ownership Groups holding 100% of the aggregate outstanding Note Principal Balance on such date.
(e) Revision of Eligibility Criteria. The Transferor and the Servicer, for itself and on behalf of the Seller and the Originators, each agree that it will not modify, amend or delete any portion of the definition of Eligible Institution, Eligible Investments, Eligible Receivable or Eligible Servicer, except in accordance with the provisions of Section 7.1(c).
(f) Mutual Obligations. On and after the Initial Closing Date, each party hereto will do, execute and perform all such other acts, deeds and documents as the other party may from time to time reasonably require in order to carry out the intent of this Agreement.
(g) Notice of Liens; Documentation of Transfer. The Transferor and the Servicer each agree that it will notify the Administrative Agent and each Managing Agent within ten (10) Business Days of any event that would cause any Originator, the Seller, the Transferor, the Servicer or the Indenture Trustee to be required to file financing statements, continuation statements or amendments thereto under the UCC pursuant to the Receivables Sale Agreement, the Receivables Purchase Agreement or the Transfer and Servicing Agreement (including, but not limited to, Section 9.02 of the Transfer and Servicing Agreement) or otherwise as would be necessary to perfect and maintain the security interest (and its priority) in and to the Eligible Receivables contemplated by the Transaction Documents.
(h) Delegation of Duties. Except as permitted under the Transaction Documents, the Servicer agrees that it will not delegate any of its duties under the Transfer and Servicing Agreement pursuant to Section 6.09 thereof without the prior written consent of the Administrative Agent and each Managing Agent.
(i) Anti-Corruption Laws and Sanctions.
(i) The Servicer will maintain in effect and enforce policies and procedures designed to ensure compliance by the Servicer and the Transferor, and each of
their respective Subsidiaries and their respective directors, officers, employees and agents, with Anti-Corruption Laws and applicable Sanctions.
(ii) The Issuer will not request any Note Principal Balance Increase, and neither of the Servicer nor the Transferor shall procure for its Subsidiaries, and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Note Principal Balance Increase (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any other manner that would result in liability to any party hereto under any applicable Sanctions or the violation of any Sanctions applicable to any party hereto.
(j) Third Party Payments. So long as any Series 2017-VFN Notes remain outstanding, neither the Transferor nor the Servicer will enter into any agreement with a third party that provides for the payment of all or a portion of the remaining Receivables Balance relating to any Contract held by or to be transferred to the Issuer, without the consent of the Series 2017-VFN Controlling Holders.
SECTION 4.10 Merger or Consolidation of, or Assumption, of the Obligations of the Transferor or the Seller.
(a) The Transferor shall not consolidate or merge with any other Person.
(b) The Performance Guarantor shall not permit the sale, consolidation or merger to an entity or entities unaffiliated with the Performance Guarantor, of one or more Originators which are Affiliates of the Performance Guarantor, and that are responsible for the origination and sale to the Seller (pursuant to the Receivables Sale Agreement) of a material portion of the Receivables intended to be sold and transferred to the Issuer pursuant to the Transaction Documents or if any such action would be reasonably likely to have a Material Adverse Effect.
(c) Any Person (i) into which the Transferor or the Seller may be merged or consolidated, (ii) resulting from any merger or consolidation to which the Transferor or the Seller, as applicable, shall be a party, (iii) that acquires by conveyance, transfer or lease substantially all of the assets of the Transferor or the Seller, as applicable, or (iv) succeeding to the business of the Performance Guarantor, USCC, the Transferor or the Seller, as applicable, which Person shall execute an agreement of assumption to perform every obligation of the Transferor or the Seller, as applicable, under this Agreement, shall be the successor to the Transferor or the Seller, as applicable, under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties to this Agreement. The Transferor or the Seller, as applicable, shall provide notice of any merger, consolidation, succession, conveyance or transfer pursuant to this Section 4.10(b) to each Managing Agent.
(d) Notwithstanding the foregoing, none of the Transferor or the Seller shall consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the Transferor or the Seller, as applicable, is merged or the Person which acquires by conveyance or transfer the properties and assets of the Transferor or the Seller, as applicable, substantially as an entirety shall be a Person organized and existing under the laws of the United States of America or any State or the District of Columbia and, if the Transferor or the Seller, as applicable, is not the surviving Person, such Person shall assume, without the execution or filing of any paper or any further act on the part of any of the parties hereto, the performance of every covenant and obligation of the Transferor or the Seller, as applicable, hereunder;
(ii) immediately after giving effect to such transaction, no representation or warranty made pursuant to Article III hereof shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and no Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default shall have occurred; and
(iii) the Transferor or the Seller, as applicable, has delivered to the Administrative Agent and each Managing Agent an Officers Certificate stating that such consolidation, merger, conveyance or transfer complies with this Section 4.10 and that all conditions precedent herein provided for relating to such transaction have been complied with, and an Opinion of Counsel to the effect that the agreement referred to in Section 4.10(b)(iv) above is the legal, valid and binding obligation of such successor Person enforceable against such successor Person in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally from time to time in effect and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity).
ARTICLE V
THE AGENTS
SECTION 5.1 Appointment.
(a) Each Owner hereby irrevocably designates and appoints the Administrative Agent as the agent of such Owner under this Agreement, and each such Owner irrevocably authorizes the Administrative Agent, as the agent for such Owner, to take such action on its behalf under the provisions of the Transaction Documents and to exercise such powers and perform such duties thereunder as are expressly delegated to the Administrative Agent by the terms of the Transaction Documents, together with such other powers as are reasonably incidental thereto. Each Owner in each Ownership Group hereby irrevocably designates and appoints the Managing Agent for such Ownership Group as the agent of such Owner under this Agreement, and each such Owner irrevocably authorizes such Managing Agent, as the agent for such Owner, to take such action on its behalf under the provisions of the Transaction Documents and to exercise such powers and perform such duties thereunder as are expressly delegated to such Managing Agent by the terms of the Transaction Documents, together with such other powers as are reasonably incidental thereto. In the event of a conflict between a determination or calculation made by the Administrative Agent and a determination or calculation made by the Owners, the determination or calculation of the Owners shall control absent manifest error. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither the Administrative Agent nor any Managing Agent (the Administrative Agent and each Managing Agent being referred to in this Article as an Agent) shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Owner, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against any Agent.
(b) Each Owner hereby accepts the appointment of the related Managing Agent specified on Schedule I hereto as its Managing Agent hereunder, and authorizes such Managing Agent to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to such Managing Agent by the terms of this Agreement, if any, together with such other powers as are reasonably incidental thereto.
(c) Except for actions which any Agent is expressly required to take pursuant to this Agreement or any Conduit Support Document, no Agent shall be required to take any action which exposes the Administrative Agent or such Agent to personal liability or which is contrary to applicable law unless such Agent shall receive further assurances to its satisfaction from the Owners of the indemnification obligations under Section 5.7 hereof against any and all liability and expense which may be incurred in taking or continuing to take such action. The Administrative Agent agrees to give to each Managing Agent and each Owner prompt notice of each notice and determination given to it by the Transferor, the Servicer or the Performance Guarantor, pursuant to the terms of this Agreement. Each Managing Agent agrees to give the Administrative Agent and such Managing Agents respective Conduit Purchaser, Committed Purchaser and Conduit Support Provider(s) prompt notice of each notice and determination given to it by the Transferor, the Servicer or the Performance Guarantor, pursuant to the terms of this Agreement. Subject to Section 5.9 hereof, the appointment and authority of the Administrative
Agent and each Managing Agent hereunder shall terminate at the later to occur of (i) the payment to (A) each Owner and each Managing Agent of all amounts owing to such Owner and Managing Agent hereunder and (B) the Administrative Agent of all amounts due hereunder and (ii) the termination of this Agreement.
SECTION 5.2 Delegation of Duties. Each Agent may execute any of its duties under any of the Transaction Documents by or through agents or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys in fact selected by it with reasonable care.
SECTION 5.3 Exculpatory Provisions.
(a) Neither any Agent nor any of its officers, directors, employees, agents, attorneys in fact or Affiliates shall be (a) liable to any of the Owners for any action lawfully taken or omitted to be taken by it or such Person under or in connection with any of the Transaction Documents (except for its or such Persons own gross negligence or willful misconduct) or (b) responsible in any manner to any of the Owners for any recitals, statements, representations or warranties made by the Servicer, the Issuer, the Performance Guarantor or the Indenture Trustee or any officer thereof contained in any of the Transaction Documents or in any certificate, report, statement or other document referred to or provided for in, or received by an Agent under or in connection with, any of the Transaction Documents or for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the Transaction Documents or for any failure of the Servicer, the Issuer, the Performance Guarantor or the Indenture Trustee to perform its obligations thereunder. No Agent shall be under any obligation to any Owner to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any of the Transaction Documents, or to inspect the properties, books or records of the Servicer, the Issuer, the Performance Guarantor or the Indenture Trustee.
(b) Unless otherwise advised in writing by an Agent or by any Owner on whose behalf such Agent is purportedly acting, each party to this Agreement may assume that (i) such Agent is acting for the benefit of the Conduit Purchaser, Committed Purchaser and/or the Conduit Support Provider(s) included in the Owner on behalf of which it is acting, as well as for the benefit of each assignee or other transferee from such Conduit Purchaser, Committed Purchaser or Conduit Support Provider(s), and (ii) such action taken by such Agent has been duly authorized and approved by all necessary action on the part of the Owner on whose behalf it is purportedly acting. Each Owner shall have the right to designate a new Agent (which may be itself) to act on its behalf and on behalf of its assignees and transferees for purposes of this Agreement by giving to the Administrative Agent written notice thereof signed by such Owner(s) and the newly designated Agent; provided, however, if such new Agent is not an Affiliate of an Agent that is party hereto, any such designation of a new Agent shall require the consent of the Transferor, which consent shall not be unreasonably withheld or delayed. Such notice shall be effective when receipt thereof is acknowledged by the Administrative Agent, which acknowledgement the Administrative Agent shall not unreasonably delay giving, and thereafter the party named as such therein shall be the Agent for such Owner under this
Agreement. Each Agent and its related Owner shall agree among themselves as to the circumstances and procedures for removal and resignation of such Agent.
SECTION 5.4 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, electronic mail, written statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Agent), independent accountants and other experts selected by such Agent. Each Agent shall be fully justified in failing or refusing to take any action under any of the Transaction Documents unless it shall first receive such advice or concurrence of (x) the Series 2017-VFN Controlling Holders, in the case of the Administrative Agent, or (y) the Committed Purchasers in its Ownership Group, in the case of a Managing Agent, as it deems appropriate or it shall first be indemnified to its satisfaction by (i) in the case of the Administrative Agent, the Committed Purchasers or (ii) in the case of a Managing Agent, Committed Purchasers in its Ownership Group having Commitments aggregating greater than 50% of the aggregate Commitments of all Committed Purchasers in such Ownership Group, against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under any of the Transaction Documents in accordance with a request of the Series 2017-VFN Controlling Holders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all present and future Ownership Group. Each Managing Agent shall determine with its related Ownership Group the manner in which such Owner (and the Conduit Purchaser, Committed Purchaser and/or Conduit Support Provider(s) included therein) shall request or direct such Managing Agent to take action, or refrain from taking action, under this Agreement and the other Transaction Documents on behalf of such Owner. Such Managing Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with such determination, and such request and any action taken or failure to act pursuant thereto shall be binding upon such Managing Agents related Owner.
SECTION 5.5 Notices. No Agent shall be deemed to have knowledge or notice of the occurrence of any breach of this Agreement or the occurrence of any Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default unless such Agent has received notice from the Issuer, the Servicer, USCC, the Indenture Trustee or any Owner, referring to this Agreement and describing such event. In the event that the Administrative Agent receives such a notice, it shall promptly give notice thereof to each Managing Agent, and in the event any Managing Agent receives such a notice, it shall promptly give notice thereof to the Owners in its Ownership Group. The Administrative Agent shall take such action with respect to such event as shall be reasonably directed by the Series 2017-VFN Controlling Holders, and each Managing Agent shall take such action with respect to such event as shall be reasonably directed by Owners in its Ownership Group in the manner determined among such Managing Agent and such Owners for taking any such action; provided, that unless and until such Managing Agent shall have received such directions, such Managing Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such event as it shall deem advisable in the best interests of the Owners or of the Owners in its Ownership Group, as applicable.
SECTION 5.6 Non Reliance on Agents and Other Owners. Each Owner expressly acknowledges that no Agent nor any of its officers, directors, employees, agents, attorneys in fact or Affiliates has made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of the Servicer, the Issuer, the Performance Guarantor or the Indenture Trustee shall be deemed to constitute any representation or warranty by any Agent to any Owner. Each Owner represents to each Agent that it has, independently and without reliance upon any Agent or any other Owner, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Servicer, the Issuer, the Performance Guarantor, the Receivables and the Indenture Trustee and made its own decision to purchase its interest in the Series 2017-VFN Notes hereunder and enter into this Agreement. Each Owner also represents that it will, independently and without reliance upon any Agent or any other Owner, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis, appraisals and decisions in taking or not taking action under any of the Transaction Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Originators, the Seller, the Transferor, the Servicer, the Issuer, the Performance Guarantor, the Receivables and the Indenture Trustee. Except, in the case of an Agent, for notices, reports and other documents received by such Agent under Article V hereof, no Agent shall have any duty or responsibility to provide any Owner with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Originators, the Seller, the Transferor, the Servicer, the Issuer, the Performance Guarantor, the Receivables or the Indenture Trustee which may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys in fact or Affiliates.
SECTION 5.7 Indemnification. (i) The Committed Purchasers agree to indemnify the Administrative Agent in its capacity as such (without limiting the obligation, if any, of the Issuer and the Servicer to reimburse the Administrative Agent for any such amounts), ratably according to their respective Commitments (or, if the Commitments have terminated, Percentage Interests), and (ii) the Committed Purchasers in each Ownership Group agree to indemnify the Managing Agent for such Ownership Group in its capacity as such (without limiting the obligation, if any, of the Issuer and the Servicer to reimburse such Managing Agent for any such amounts), ratably according to their respective Commitments (or, if the Commitments have terminated, Percentage Interests), in each case from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including at any time following the payment of the obligations under this Agreement, including the Note Principal Balance) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of this Agreement, or any documents contemplated by or referred to herein or the transactions contemplated hereby or any action taken or omitted by the Agent under or in connection with any of the foregoing; provided, that (i) no Owner shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of an Agent resulting from its own gross negligence or willful misconduct and (ii) no Ownership Group shall be liable for any amount in respect of any compromise or settlement or any of the foregoing unless such compromise or settlement is approved by the Series 2017-VFN Controlling Holders. Without limitation of the generality of the foregoing, each Owner, other than a Conduit
Purchaser, agrees to reimburse the Administrative Agent, promptly upon demand, for any reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement or any other Transaction Document; provided, that none of the Owners shall be responsible for the costs and expenses of the Administrative Agent in defending itself against any claim alleging the gross negligence or willful misconduct of the Administrative Agent to the extent such gross negligence or willful misconduct is determined by a court of competent jurisdiction in a final and non-appealable decision. The agreements in this Section shall survive the payment of the obligations under this Agreement, including the Note Principal Balance.
SECTION 5.8 Agents in their Individual Capacity. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with USCC, the Originators, the Seller, the Issuer, the Performance Guarantor or the Servicer as though such Agent were not an agent hereunder. In addition, the Owners acknowledge that one or more Persons which are Agents may act (i) as administrator, sponsor or agent for one or more Conduit Purchasers and in such capacity act and may continue to act on behalf of each such Conduit Purchaser in connection with its business, and (ii) as the agent for certain financial institutions under the liquidity and credit enhancement agreements relating to this Agreement to which any one or more Conduit Purchasers is party and in various other capacities relating to the business of any such Conduit Purchaser under various agreements. Any such Person, in its capacity as Agent, shall not, by virtue of its acting in any such other capacities, be deemed to have duties or responsibilities hereunder or be held to a standard of care in connection with the performance of its duties as an Agent other than as expressly provided in this Agreement. Any Person which is an Agent may act as an Agent without regard to and without additional duties or liabilities arising from its role as such administrator or agent or arising from its acting in any such other capacity.
SECTION 5.9 Successor Agents.
(a) The Administrative Agent may resign as Administrative Agent upon sixty (60) days notice to the Owners, each Managing Agent, the Indenture Trustee, the Issuer, the Performance Guarantor and the Servicer with such resignation becoming effective upon a successor administrative agent succeeding to the rights, powers and duties of the Administrative Agent pursuant to this Section 5.9. If the Administrative Agent shall resign as Administrative Agent under this Agreement, then the Series 2017-VFN Controlling Holders shall appoint from among the Committed Purchasers a successor administrative agent. Any Managing Agent may resign as Managing Agent upon ten (10) days notice to the Owners in its Ownership Group, the Administrative Agent, the Indenture Trustee, the Issuer and the Servicer with such resignation becoming effective upon a successor agent succeeding to the rights, powers and duties of the Managing Agent pursuant to this Section 5.9. If a Managing Agent shall resign as Managing Agent under this Agreement, then (i) Owners in its Ownership Group having Percentage Interests aggregating greater than 50% of the aggregate Percentage Interests of all Owners in such Ownership Group, and (ii) Committed Purchasers in its Ownership Group having Commitments aggregating greater than 50% of the aggregate Commitments of all Committed
Purchasers in such Ownership Group shall appoint from among the Committed Purchasers in such Ownership Group a successor agent for such Ownership Group.
(b) The Issuer may replace the Administrative Agent by giving at least one hundred twenty (120) days prior written notice to the Administrative Agent, the Owners, the Managing Agents, the Transferor, the Servicer, the Performance Guarantor and the Indenture Trustee. Any such replacement Administrative Agent shall be subject to the prior written approval of 100% of the Managing Agents as of such date (other than the Person then acting as the Administrative Agent, in such capacity, but including such Person, if applicable, in its capacity as an Owner), which approval shall not be unreasonably withheld or delayed. If 100% of the Managing Agents do not approve a replacement Administrative Agent, the Administrative Agent shall continue to serve in such capacity until it resigns in accordance with Section 5.9(a) or is replaced in accordance with this Section 5.9(b).
(c) Any successor administrative agent or agent shall succeed to the rights, powers and duties of the resigning Agent, and the term Administrative Agent or Managing Agent, as applicable, shall mean such successor administrative agent or managing agent effective upon its appointment, and the former Managing Agents rights, powers and duties as Managing Agent shall be terminated, without any other or further act or deed on the part of such former Managing Agent or any of the parties to this Agreement. After the retiring Managing Agents resignation as Managing Agent, the provisions of this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Managing Agent under this Agreement.
SECTION 5.10 Funding Decision. Each Owner acknowledges that it has, independently and without reliance upon the Administrative Agent, and based on such documents and information as it has deemed appropriate, made its own evaluation and decision to enter into this Agreement and to fund an interest in the Invested Amount. Each Owner also acknowledges that it will, independently and without reliance upon the Administrative Agent or any of their respective Affiliates, and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under this Agreement or any related agreement, instrument or other document.
ARTICLE VI
TRANSFERS OF SERIES 2017-VFN NOTES
SECTION 6.1 Transfers of Series 2017-VFN Notes.
(a) Each Owner agrees that the interest in the Series 2017-VFN Notes purchased by it will be acquired for investment only and not with a view to any public distribution thereof, and that such Owner will not offer to sell or otherwise dispose of any Series 2017-VFN Note acquired by it (or any interest therein) in violation of any of the requirements of the Securities Act or any applicable state or other securities laws. Each Owner acknowledges that it has no right to require the Issuer to register, under the Securities Act, or any other securities law, the Series 2017-VFN Notes (or any interest therein) acquired by it pursuant to this Agreement or any Transfer Supplement. Each Owner hereby confirms and agrees that in connection with any transfer or syndication by it of an interest in the Series 2017-VFN Notes,
such Owner has not engaged and will not engage in a general solicitation or general advertising including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(b) Each initial owner of a Series 2017-VFN Note or any interest therein and any Assignee thereof or Participant therein shall certify, as of the date it acquired an interest or Participation in the Series 2017-VFN Notes, to the Issuer, the Servicer, the Indenture Trustee, the Administrative Agent and the Managing Agent for its Ownership Group that it is either (i) a citizen or resident of the United States, (ii) a corporation or other entity organized in or under the laws of the United States or any political subdivision thereof or (iii) a person not described in (i) or (ii) who is entitled to receive payments under this Agreement and with respect to the Series 2017-VFN Notes without deduction or withholding of any United States federal income taxes and who will furnish to the Issuer, the Servicer, the Indenture Trustee, the Administrative Agent, the Managing Agent for its Ownership Group, and to the Owner making the Transfer the forms described in Section 2.5(c).
(c) Any sale, transfer, assignment, participation, pledge, hypothecation or other disposition (a Transfer) of a Series 2017-VFN Note or any interest therein may be made only in accordance with this Section 6.1 and any applicable provisions of the Indenture, and must be in an amount not less than $5,000,000 except in the event of a transfer to another Owner or Conduit Support Provider within the same Ownership Group. No Series 2017-VFN Note or any interest therein may be transferred by Assignment or Participation to any Person (each, a Transferee) unless the Transferee is a Permitted Transferee. In connection with any Transfer, each such Transferee will execute and deliver an Investment Letter as required in Section 6.1(e); provided, no Investment Letter will be required in connection with any Participation to a Permitted Transferee that is an Affiliate of the related Owner, as provided in Section 6.1(d).
Each of the Issuer and the Servicer authorizes each Owner to disclose to any Transferee and Support Party and to any prospective Transferee or Support Party which is a Permitted Transferee any and all Confidential Information in the Owners possession concerning this Agreement or the Transaction Documents or concerning USCC, the Originators, the Seller, the Servicer, the Transferor, the Issuer, the Receivables, the Trust Assets or such party which has been delivered to any Managing Agent or such Owner pursuant to this Agreement or the Transaction Documents (including information obtained pursuant to rights of inspection granted hereunder) or which has been delivered to such Owner by or on behalf of the Issuer or the Servicer in connection with such Owners credit evaluation of the Receivables, the Trust Assets, the Issuer or the Servicer prior to becoming a party to, or purchasing an interest in this Agreement or the Series 2017-VFN Notes.
(d) Each Owner may, in accordance with applicable law, at any time grant participations in all or part of its Commitment or its interest in the Series 2017-VFN Notes, including the payments due to it under this Agreement and the Transaction Documents (each, a Participation), to any Person who is a Permitted Transferee (each such Person, a Participant); provided, however, that no Participation shall be granted to any Person unless and until the Managing Agent for such Owners Ownership Group shall have consented thereto (such consent not to be unreasonably withheld); provided further, that the parties hereto agree that any
Owner may grant a Participation to a Permitted Transferee that is an Affiliate of such Owner in connection with such Owners respective obligations under this Agreement without consent of any other party and without any further documentation. In connection with any such Participation, each Managing Agent for an Ownership Group shall maintain a register of each Participant of members of its Ownership Group and the amount of each related Participation. Each Owner hereby acknowledges and agrees that (A) any such Participation will not alter or affect such Owners direct obligations hereunder, and (B) neither the Indenture Trustee, the Issuer nor the Servicer shall have any obligation to have any communication or relationship with any Participant. Each Owner and each Participant shall comply with the provisions of Section 2.5(c) of this Agreement. No Participant shall be entitled to transfer all or any portion of its Participation, without the prior written consent of the Managing Agent for its Ownership Group (such consent not to be unreasonably withheld). Each Participant shall be entitled to receive additional amounts and indemnification pursuant to Sections 2.4, 2.5 and 2.6 hereof as if such Participant were an Owner and such Sections applied to its Participation; provided, in the case of Section 2.5, that such Participant has complied with the provisions of Section 2.5(c) hereof as if it were an Owner. Each Owner shall give the Managing Agent for its Ownership Group notice of the consummation of any sale by it of a Participation. It shall be a further condition to the grant of any Participation (except in the case of Participants that are Affiliates of the applicable Owner granting such Participation) that the Participant shall have certified, represented and warranted that (i) it is entitled to (A) receive payments with respect to its participation without deduction or withholding of any United States federal income taxes, and (B) an exemption from United States backup withholding tax, and (ii) to the extent such Participant has not otherwise directly provided such forms to the Servicer and the Indenture Trustee, (A) prior to the date on which the first interest payment is due to such Participant, such Participant will provide to the Servicer, the Administrative Agent and Indenture Trustee, the forms described in Section 2.5(c) (as applicable and as set forth therein) as though the Participant were an Owner, and (B) such Participant similarly will provide subsequent forms as described in Section 2.5(c) with respect to such Participant as though it were an Owner.
(e) Each Owner may, with the consent of the Managing Agent for its Ownership Group (such consent not to be unreasonably withheld) and in accordance with applicable law, sell, assign or grant a security interest in or pledge (each, an Assignment), to any Permitted Transferee (each, an Assignee) all or any part of its Commitment (if any) or its interest in the Series 2017-VFN Notes and its rights and obligations under this Agreement and the Transaction Documents pursuant to an agreement substantially in the form attached hereto as Exhibit A hereto (a Transfer Supplement), executed by such Assignee and the Owner and delivered to the Managing Agent for its Ownership Group for its acceptance and consent (such consent not to be unreasonably withheld); provided, however, that (i) except for (A) an assignment by a Conduit Purchaser of its interest in the Series 2017-VFN Notes and its rights and obligations under this Agreement and the Transaction Documents to any one or more of the Committed Purchasers or Conduit Support Providers in its Ownership Group, or to such Conduit Purchasers Collateral Agent or a Conduit Trustee for its commercial paper program, or (B) an assignment by a Conduit Purchaser of the type described in the second sentence of Section 7.5, no such assignment or sale shall be effective unless and until the conditions to Transfer specified in this Agreement, including in Section 6.1 hereof, shall have been satisfied, (ii) no assignment or sale which results in the addition of a new Ownership Group shall be effective without the consent of the Administrative Agent, except in the event that an Amortization Event or Event of
Default has occurred and is continuing, and (iii) in no event shall the consent of a Managing Agent be required in the case of an assignment by a Conduit Purchaser of its interest in the Series 2017-VFN Notes and its rights and obligations under this Agreement and the Transaction Documents to any one or more of the Committed Purchasers or Conduit Support Providers in its Ownership Group, or to the Collateral Agent or a Conduit Trustee for the related Conduit Purchasers commercial paper program. From and after the effective date determined pursuant to such Transfer Supplement, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Transfer Supplement, have the rights and obligations of an Owner hereunder as set forth therein and (y) the transferor Owner shall, to the extent provided in such Transfer Supplement, be released from its Commitment and other obligations under this Agreement; provided, however, that after giving effect to each such Assignment, the obligations released by any such Owner shall have been assumed by an Assignee or Assignees. No pledge and/or collateral assignment by any Conduit Purchaser to a Support Party under a Support Facility of an interest in the rights of such Conduit Purchaser in any Note Principal Balance Increase made by such Conduit Purchaser and the obligations under this Agreement shall constitute an assignment and/or assumption of such Conduit Purchasers obligations under this Agreement, such obligations in all cases remaining with such Conduit Purchaser. Moreover, any such pledge and/or collateral assignment of the rights of such Conduit Purchaser shall be permitted hereunder without further action or consent and any such pledgee may foreclose on any such pledge and perfect an assignment of such interest and enforce such Conduit Purchasers right hereunder notwithstanding anything to the contrary in this Agreement. Such Transfer Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Percentage Interests or Committed Percentages arising from the Assignment. Upon its receipt and acceptance of a duly executed Transfer Supplement, the Managing Agent for the applicable Ownership Group (or, in the case of an Assignment by which a new Ownership Group is added to this Agreement, the Administrative Agent) shall on the effective date determined pursuant thereto give notice of such acceptance to the Issuer, the Servicer and the Indenture Trustee.
Upon instruction to register a transfer of an Owners interest in the Series 2017-VFN Notes (or portion thereof) and surrender for registration of transfer of such Owners Series 2017-VFN Note(s) (if applicable) and delivery to the Issuer and the Registrar of an Investment Letter, executed by the registered owner (and the beneficial owner if it is a Person other than the registered owner), and receipt by the Registrar of a copy of the duly executed related Transfer Supplement and such other documents as may be required under this Agreement, such interest in the Series 2017-VFN Notes (or portion thereof) shall be transferred in the records of the Registrar and the applicable Managing Agent and, if requested by the Assignee, new Series 2017-VFN Notes shall be issued to the Assignee and, if applicable, the transferor Owner in amounts reflecting such Transfer as provided in the Indenture. To the extent of any conflict between the provisions of this Section 6.1 and any provisions of Section 2.17 of the Indenture applicable to Transfers of Series 2017-VFN Notes (or interests therein), the provisions of Section 2.17 of the Indenture shall control. Successive registrations of Transfers as aforesaid may be made from time to time as desired, and each such registration of a transfer to a new registered owner shall be noted on the Note Register.
(f) Each Owner may pledge its interest in the Series 2017-VFN Notes to any Federal Reserve Bank as collateral in accordance with applicable law without further action or consent.
(g) Any Owner shall have the option to change its Investing Office, provided, that such Owner shall have prior to such change in office complied with the provisions of Section 2.5 hereof and provided further, that such Owner shall not be entitled to any amounts otherwise payable under Section 2.4 or Section 2.5 hereof resulting solely from such change in office unless such change in office was mandated by applicable law or by such Owners compliance with the provisions of this Agreement.
(h) Each Support Party shall be entitled to receive additional payments and indemnification pursuant to Section 2.4, Section 2.5 or Section 2.6 hereof as though it were an Owner and such Section applied to its interest in or commitment to acquire an interest in the Series 2017-VFN Notes; provided, that such Support Party shall not be entitled to additional payments pursuant to (i) Section 2.4 by reason of Regulatory Changes which occurred prior to the date it became a Support Party except as otherwise provided in such Section or (ii) Section 2.5 attributable to its failure to satisfy the requirements of Section 2.5 as if it were an Owner, and provided further, that unless such Support Party is a Permitted Transferee or has been consented to by the Issuer, such Support Party shall be entitled to receive additional amounts pursuant to Section 2.4 or Section 2.5 only to the extent that its related Conduit Purchaser would have been entitled to receive such amounts in the absence of the Commitment and Support Advances from such Support Party. The provisions of Section 2.4 shall apply to each Managing Agent and to such of its Affiliates as may from time to time administer, make referrals to or otherwise provide services or support to the Conduit Purchaser in the corresponding Ownership Group (in each case as though such Managing Agent or Affiliate were an Owner and such Section applied to its administration of or other provisions of services or support to such Conduit Purchaser in connection with the transactions contemplated by this Agreement), whether as an administrator, administrative agent, referral agent, managing agent or otherwise.
(i) Each Support Party claiming increased amounts described in Section 2.4 or Section 2.5 hereof shall furnish, through its related Conduit Purchaser, to the Issuer, the Administrative Agent, the Servicer, the Indenture Trustee and the Managing Agent for the applicable Ownership Group a certificate setting forth the basis and amount of each request by such Support Party for any such amounts referred to in Section 2.4 or Section 2.5, such certificate to be conclusive with respect to the factual information set forth therein absent manifest error.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Amendments and Waivers.
(a) This Agreement may not be amended, supplemented or modified nor may any provision hereof be waived except in accordance with the provisions of this Section 7.1. With the written consent of the Administrative Agent and the Managing Agents of Ownership Groups holding 100% of the Outstanding Amount of the Series 2017-VFN Notes, the parties
hereto may, from time to time, enter into written amendments, supplements, waivers or modifications hereto for the purpose of adding any provisions to this Agreement or changing in any manner the rights of any party hereto or waiving, on such terms and conditions as may be specified in such instrument, any of the requirements of this Agreement; provided, however, that no such amendment, supplement, waiver or modification shall (i) reduce the amount or extend the maturity of any Series 2017-VFN Note or reduce the rate or extend the time of payment of interest thereon, or reduce or alter the timing of any other amount payable to any Owner hereunder or under the Indenture, in each case without the consent of the Owner affected thereby, or (ii)(x) increase or otherwise modify the Commitment of any Ownership Group; (y) amend, modify or waive any provision of this Section 7.1 or (z) amend, modify or waive any provision of Article V of this Agreement, without the written consent of each Managing Agent affected by such amendment, modification or waiver; and provided further, that no provision of this Agreement that pertains specifically to any Conduit Purchaser, Committed Purchaser, a Support Party or an Note Principal Balance Increase made by such Conduit Purchaser or Committed Purchaser, may be amended or waived without the written consent of such Conduit Purchaser or Committed Purchaser. Any waiver of any provision of this Agreement shall be limited to the provisions specifically set forth therein for the period of time set forth therein and shall not be construed to be a waiver of any other provision of this Agreement. Any amendment under this Section 7.1(a) is subject only to the requirements that the Issuer delivers to each Owner and Managing Agent and the Indenture Trustee an Officers Certificate of the Issuer to the effect that the proposed amendment meets the requirements set forth in this Section 7.1(a).
(b) Without derogating from the absolute nature of the assignment granted to Indenture Trustee pursuant to the Indenture or the rights of Indenture Trustee under the Indenture, the Issuer agrees that it will not, without the prior written consent of the Indenture Trustee (acting at the written direction of Noteholders representing the Series 2017-VFN Controlling Holders), amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any Receivable or the Related Rights (except to the extent otherwise provided or permitted in the Transfer and Servicing Agreement or any other Transaction Document, other than those amendments affecting solely other Series) or the Transaction Documents (except to the extent otherwise provided or permitted in the Transaction Documents, other than those amendments affecting solely other Series), or waive timely performance or observance by the Servicer or the Transferor of their respective obligations under the Transfer and Servicing Agreement; provided, however, that any such amendment shall not (A) reduce the amount or extend the maturity of any Series 2017-VFN Note or reduce the rate or extend the time of payment of interest thereon, or reduce or alter the timing of any other amount payable to any Owner hereunder or under the Indenture, in each case without the consent of the Owner affected thereby, or (B) reduce the aforesaid percentage of the Series 2017-VFN Notes that is required to consent to any such amendment, without the consent of the Holders of all the Outstanding Series 2017-VFN Notes. If any such amendment, modification, supplement or waiver shall be so consented to by Indenture Trustee (at the written direction of such Noteholders), the Issuer agrees, to execute and deliver, in its own name and at its own expense, such agreements, instruments, consents and other documents as are necessary or appropriate in the circumstances. The Indenture Trustee shall have no obligation to consent or agree to any amendment or modification that would affect the Indenture Trustees duties, obligations, rights, responsibilities, indemnities or immunities
under any Transaction Document. Promptly upon execution of any amendment to this Agreement, the Issuer shall deliver a copy of such amendment to the Indenture Trustee.
(c) Except with respect to provisions of the Transaction Documents permitting amendments without consent of Noteholders, and subject to the requirements of such provisions, none of the Transferor, the Issuer, the Servicer or the Performance Guarantor shall permit or consent to any amendment, waiver, supplement or other modification of any of the Transaction Documents without the prior written consent of the Administrative Agent and Managing Agents of Ownership Groups holding 66-2/3% of the Outstanding Amount of the Series 2017-VFN Notes; provided, however, that no such amendment, waiver, supplement, modification, consent or change to any Transaction Document may (i) reduce the amount or extend the maturity of any Series 2017-VFN Note or reduce the rate or extend the time of payment of interest thereon, or reduce or alter the timing of any other amount payable to any Owner under any Transaction Document, (ii) modify in any respect the definitions of Advance Amount, Advance Rate, Aggregate Advance Amount, Amortization Period, Asset Base, Asset Base Deficiency, Change of Control, Defaulted Receivable, Delinquent Receivable, Determination Date, Excess Concentrations, Hedging Requirements, Note Rate, Required Hedge Rate, Requisite Global Majority, Series 2017-VFN Controlling Holders, Series 2017-VFN Default Ratio, Series 2017-VFN Delinquency Ratio, Series 2017-VFN Dilution Ratio, Series Discount Percentage, Supplemental Principal Payment Amount, Target Deposit Amount, or any other definition included on Annex A to the Series 2017-VFN Indenture Supplement, or any component thereof (or any definitions comprising such definitions if such change would alter the calculation of such amount) under the Series 2017-VFN Supplement, (iii) modify in any respect the Events of Default, Amortization Events or Servicer Defaults applicable to Series 2017-VFN, (iv) modify, amend or delete any portion of the definition of Eligible Institution, Eligible Investments, Eligible Receivable or Eligible Servicer, (v) release or otherwise waive the Performance Guarantors performance of its obligations pursuant to the Performance Guaranty, (vi) make any change that could reasonably be expected to impair the creation or perfection of the security interest in favor of the Indenture Trustee for the benefit of the Series 2017-VFN Noteholders, (vii) change or waive any of the provisions of Sections 2.06, 4.02, 4.04 or 6.07 of the Transfer and Servicing Agreement, Sections 4.1 or 4.2 of the Series-2017-VFN Supplement, or Sections 2.2, 3.2, 4.6(n), 4.6(p), 4.7(o), 4.7(t), 4.7(u), 4.9(c), 4.10, or 7.1 of this Agreement, or (viii) amend, modify or waive any provision of this Section 7.1(c), without the written consent of the Administrative Agent and each Managing Agent affected thereby; provided, further, that no consent of the Administrative Agent or any Managing Agent shall be required for any amendment, modification or change to, or provide any waiver under any Fee Letter to which the Administrative Agent or such Managing Agent is not a party; provided, further, that no consent of the Administrative Agent or any Managing Agent shall be required for any amendment, modification or change to any Transaction Document:
(i) to cure any ambiguity;
(ii) to correct or supplement any provision in any Transaction Document that may be defective or inconsistent with any other provision in this Agreement or any other Transaction Document;
(iii) to add or supplement any Enhancement Agreement for the benefit of any Ownership Group (provided that if any such addition shall affect any Ownership Group differently than any other Ownership Group, then such addition shall not, as evidenced by an Opinion of Counsel, materially and adversely affect in any material respect the interests of any Ownership Group);
(iv) to add to the covenants, restrictions or obligations of the Transferor, the Servicer, the Owner Trustee or the Indenture Trustee for the benefit of the Owners;
(v) to add, change or eliminate any other provision of this Agreement or any other Transaction Document in any manner that shall not, as evidenced by an Opinion of Counsel, materially and adversely affect the interests of the Owners; or
(vi) to enter into indentures supplemental to the Indenture pursuant to Article X thereof for purposes of issuing a new Series of Notes or to amend, modify or supplement any such series supplement.
SECTION 7.2 Notices.
(a) All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including telecopies or electronic communication) and shall be delivered or mailed by first class United States mail, postage prepaid, hand delivery, prepaid courier service or facsimile transmission (during business hours on a Business Day), as to each party hereto, at its address identified on Schedule I, Schedule II or Schedule III hereto, as applicable, or at such other address as shall be designated by such party in a written notice to the other party hereto. All such notices and communications shall be deemed delivered and shall be effective (i) if given by registered or certified first class United States mail, three Business Days after such communication is deposited in the mails in such fashion, (ii) if given by facsimile transmission, upon transmission to the facsimile number specified hereunder (as evidenced by electronic confirmation of such transmission), or (iii) if given by any other means (including prepaid courier), when delivered to the address of the recipient for notices hereunder.
(b) All payments to be made to the Administrative Agent or any Managing Agent or Owner hereunder shall be made in United States dollars and in immediately available funds not later than 2:00 p.m., New York City time, on the date payment is due, and, unless otherwise specifically provided herein, shall be made to the applicable Managing Agent, for the account of one or more of the Owners or for its own account, as the case may be. Unless otherwise directed by the Administrative Agent, all payments to it hereunder shall be made by federal wire to the Administrative Agent at such account as the Administrative Agent may designate in writing to the Issuer. Unless otherwise directed by a Managing Agent or Owner, all payments to it shall be made by federal wire to the account specified on Schedule I hereto or in the Transfer Supplement by which it became a party hereto (provided, in the case of an account specified in a Transfer Supplement, that the Managing Agent, the Administrative Agent, the Issuer, the Servicer or the Indenture Trustee, as the case may be, shall have received notice thereof).
SECTION 7.3 Confidentiality.
(a) Each of USCC, the Transferor, the Issuer, the Servicer and the Performance Guarantor, severally and with respect to itself only (or, with respect to USCC, for itself and on behalf of the Seller and the Originators), covenants and agrees to hold in confidence, and not disclose to any Person, the terms of this Agreement (including any fees payable in connection with this Agreement or the other Transaction Documents or the identity of any Owner under this Agreement), except as the Administrative Agent or such Managing Agent or Owner may have consented to in writing prior to any proposed disclosure and except that it may disclose such information (i) to its officers, directors, employees, agents, counsel, accountants, auditors, advisors or representatives, (ii) to the extent such information has become available to the public other than as a result of a disclosure by or through the Issuer or the Servicer or (iii) to the extent it should be (A) required by law, rule or regulation, or in connection with any legal or regulatory proceeding or (B) requested by any Governmental Authority to disclose such information; provided, that in the case of clause (iii)(A), USCC, the Issuer, the Transferor, the Servicer and the Performance Guarantor, as applicable, will use all reasonable efforts to maintain confidentiality and will (unless otherwise prohibited by law) notify the affected Administrative Agent, Managing Agent or Owners of its intention to make any such disclosure prior to making such disclosure.
(b) Each of the Administrative Agent, each Managing Agent and each Owner, severally and with respect to itself only, agrees that it will use the Confidential Information solely for the purpose of the Transaction (as defined below) and agrees to reveal the Confidential Information only to its affiliates, subsidiaries, directors, officers, employees and agents (collectively, the Affiliates) with a need to know the Confidential Information for the purposes of the transaction evidenced by this Agreement and the other Transaction Documents (the Transaction). Each of the Administrative Agent, each Managing Agent and each Owner agrees not to disclose to any third party any such Confidential Information now or hereafter received or obtained by it without the Servicers and the Issuers prior written consent; provided, however, that it may disclose any such Confidential Information to its respective accountants, attorneys and other confidential advisors (collectively Advisors) who need to know such information for the purpose of assisting it in connection with the Transaction. Each of the Administrative Agent and each Managing Agent and Owner agrees to be responsible for any breach of this Agreement by its Affiliates and Advisors and agrees that its Affiliates and Advisors will be advised by it of the confidential nature of such information and shall agree to be bound by this Agreement.
(c) None of the Administrative Agent, any Managing Agent or any Owner nor any of their Affiliates or Advisors, without the prior written consent of the Servicer and the Issuer, will disclose to any person the fact that Confidential Information has been provided to it or them, that discussions or negotiations have taken place with respect to the Transaction, or the existence, terms, conditions, or other facts of the Transaction, including the status thereof. Notwithstanding the foregoing, the Confidential Information and the fact that discussions or negotiations are taking place with respect to a Transaction or the existence, terms, conditions, or other facts of such Transaction, including the status thereof may be disclosed on a confidential basis (i) to the Administrative Agent, the Managing Agents, the Owners, the Conduit Support Providers or any program administrator for a Conduit Purchaser by each other, (ii) by the
Administrative Agent, the Managing Agents or the Owners to any prospective or actual assignee or participant of any of them, (iii) by the Administrative Agent, any Managing Agent, any Owner or any program administrator for any Conduit Purchaser to any nationally recognized statistical rating organization in compliance with Rule 17g-5 under the Exchange Act (or to any other rating agency in compliance with any similar rule or regulation in any relevant jurisdiction), commercial paper dealer or provider of a surety, guaranty or credit or liquidity enhancement to a Conduit Purchaser or any entity organized for the purpose of purchasing, or making loans secured by, financial assets for which such Managing Agent or Committed Purchaser acts as the administrative agent and (iv) pursuant to any law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or proceedings (whether or not having the force or effect of law).
(d) Notwithstanding anything herein to the contrary, if the Administrative Agent, any Managing Agent or Owner or any of their Affiliates or Advisors are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information (including the fact that discussions or negotiations are taking place with respect to the Transaction) it may disclose such Confidential Information; provided, that it promptly notify the Servicer and the Issuer of such requirement so that the Servicer and/or the Issuer may seek a protective order or other appropriate remedy and/or waive compliance with the provisions hereof. Each of the Administrative Agent and each Managing Agent and Owner agrees to use commercially reasonable efforts to assist the Servicer and the Issuer in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, it may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that it has been advised by counsel that it is legally compelled to disclose; provided that it agrees to use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information by the person or persons to whom it was disclosed.
(e) Notwithstanding anything herein to the contrary, it is understood that the Administrative Agent, the Managing Agents and the Owners or their affiliates may disclose the Confidential Information or portions thereof at the request of a bank examiner or other regulatory authority or in connection with an examination of any of the Administrative Agent, the Managing Agents or the Owners and their respective Affiliates by a bank examiner or other regulatory authority without any notice to the Issuer or the Servicer.
(f) Notwithstanding anything herein to the contrary, the obligations of confidentiality contained herein shall not apply to the federal tax structure or federal tax treatment of the Transaction, and each party and Owner (and any employee, representative or agent of any party or Owner) may disclose to any and all persons, without limitation of any kind, all materials of any kind (including opinions or other tax analyses) that are provided relating to such federal tax structure and federal tax treatment of the Transaction. This authorization of tax disclosure is retroactively effective to the commencement of the first discussions among the parties regarding the transactions contemplated by this Agreement and the other Transaction Documents. For these purposes, tax structure is limited to facts relevant to the U.S. federal income tax treatment of the transactions entered into under this Agreement and the other Transaction Documents.
(g) Notwithstanding anything herein to the contrary, the Transferor acknowledges and agrees that the Conduit Purchasers, the Committed Purchasers and the Managing Agents are permitted to provide to the Conduit Support Providers, respective Collateral Agent or Conduit Trustee for its commercial paper program (if applicable), permitted assignees and participants, the placement agents for their respective Commercial Paper Notes, the rating agencies with respect to such notes and other liquidity and credit providers under their respective Commercial Paper Notes or commercial paper programs, opinions, certificates, documents and other information relating to the Transferor and the Receivables delivered to the Administrative Agent, the Committed Purchasers, the Conduit Purchasers or the Managing Agents pursuant to this Agreement.
SECTION 7.4 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any party hereto, any right, remedy, power or privilege under any of the Transaction Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under any of the Transaction Documents preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in the Transaction Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 7.5 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of USCC, the Issuer, the Servicer, the Performance Guarantor, the Administrative Agent, the Managing Agents, the Owners, any Transferee and their respective successors and permitted assigns, and, to the extent provided herein, to each Indemnified Party, Participant and Support Party and their respective successors and assigns; provided, that, except as provided in Section 4.10, none of USCC, the Issuer, the Transferor, the Servicer or the Performance Guarantor may assign or transfer any of their respective rights or obligations under this Agreement without the prior written consent of all of the Managing Agents; provided further, that (i) in connection with any such assignment the assignee shall expressly agree in writing to assume all the obligations of USCC, the Issuer, the Transferor, the Servicer or the Performance Guarantor, as applicable, hereunder and (ii) no such assignment made without the prior written consent of all of the Managing Agents shall relieve USCC, the Issuer, the Transferor, the Servicer or the Performance Guarantor, as applicable, of any of its obligations hereunder; and provided further that no assignment permitted hereunder shall relieve USCC, the Issuer, the Transferor, the Servicer or the Performance Guarantor, as applicable, from any obligations arising hereunder prior to such assignment (including obligations with respect to breaches of representations and warranties made herein). Each of the Issuer and the Transferor acknowledges (i) that Thunder Bay may at any time assign, pledge or grant a security interest in this Agreement or all or any portion of the rights such Conduit Purchaser may have hereunder to a collateral trustee in order to comply with Rule 3a-7 of the Investment Company Act, and (ii) that each Conduit Purchaser may assign a security interest in or pledge this Agreement and any rights such Conduit Purchaser may have hereunder to the Collateral Agent or a Conduit Trustee for its commercial paper program to secure obligations of such Conduit Purchaser, in each case without notice to or consent of the Transferor or the Issuer; provided, that no such assignment by any Conduit Purchaser specified in clauses (i) or (ii) above shall relieve such Conduit Purchaser of any of its obligations hereunder.
SECTION 7.6 Successors to Servicer. In the event that a transfer of servicing occurs under the Transfer and Servicing Agreement pursuant to the terms thereof, (i) from and after the effective date of such transfer, the Successor Servicer shall be the successor in all respects to the Servicer and shall be responsible for the performance of all functions to be performed by the Servicer from and after such date, except as provided in the Transfer and Servicing Agreement, and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to the Successor Servicer, and (ii) as of the date of such transfer, the Successor Servicer shall be deemed to have made with respect to itself the representations and warranties made in Section 4.2 hereof with appropriate factual changes; provided, however, that the references to the Servicer contained in Section 2.6(b) of this Agreement shall be deemed to refer to the Servicer with respect to responsibilities, duties and liabilities arising out of an act or acts, or omission, or an event or events giving rise to such responsibilities, duties and liabilities and occurring during such time that the Servicer was Servicer under this Agreement and shall be deemed to refer to the Successor Servicer with respect to responsibilities, duties and liabilities arising out of an act or acts, or omission, or an event or events giving rise to such responsibilities, duties and liabilities and occurring during such time that the Successor Servicer acts as Servicer under the Transfer and Servicing Agreement; provided, however, to the extent that an obligation to indemnify Indemnified Parties under Section 2.6 hereof arises as a result of any act or failure to act of any Successor Servicer in the performance of servicing obligations under the Transfer and Servicing Agreement, such indemnification obligation shall be of the Successor Servicer and not its predecessor.
SECTION 7.7 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
SECTION 7.8 Severability. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.
SECTION 7.9 Integration. This Agreement represent the agreement of the Issuer, the Transferor, the Servicer, the Administrative Agent, the Managing Agents and the Owners with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by any party hereto relative to subject matter hereof not expressly set forth or referred to herein or therein or in the Transaction Documents.
SECTION 7.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW PROVISIONS.
SECTION 7.11 WAIVER OF JURY TRIAL. EACH OF THE ISSUER, THE TRANSFEROR, THE SERVICER, THE PERFORMANCE GUARANTOR, THE ADMINISTRATIVE AGENT, THE MANAGING AGENTS AND THE OWNERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE SERIES 2017-VFN NOTES OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE ISSUER, THE TRANSFEROR, THE SERVICER, THE PERFORMANCE GUARANTOR, THE ADMINISTRATIVE AGENT, THE MANAGING AGENTS AND THE OWNERS. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT AND FOR OWNERS PURCHASING AN INTEREST IN THE SERIES 2017-VFN NOTES DESCRIBED HEREIN AND THE ADMINISTRATIVE AGENT AND EACH MANAGING AGENT AGREEING TO ACT AS SUCH HEREUNDER.
SECTION 7.12 Jurisdiction; Consent to Service of Process. Each of the parties hereto hereby irrevocably and unconditionally (i) submits, for itself and its property, to the nonexclusive jurisdiction of any New York state court in New York County or federal court of the United States of America for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment arising out of or relating to this Agreement; (ii) agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York state court or, to the extent permitted by law, federal court; (iii) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law; (iv) consents that any such action or proceeding may be brought in such courts and waives any objection it may now or hereafter have to the laying of venue of any such action or proceeding in any such court and any objection it may now or hereafter have that such action or proceeding was brought in an inconvenient court, and agrees not to plead or claim the same; (v) consents to service of process in the manner provided for notices in Section 7.2 of this Agreement (provided that, nothing in this Agreement shall affect the right of any such party to serve process in any other manner permitted by law); and (vi) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any such action or proceeding any special, exemplary, punitive or consequential damages.
SECTION 7.13 Termination. This Agreement shall remain in full force and effect until the Termination Date; provided, that the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 5.1, 5.2, 5.7, 7.10, 7.12, 7.13, 7.14, and 7.16 shall survive termination of this Agreement and any amounts payable to the Administrative Agent, the Managing Agents, the Owners or any Support Party thereunder shall remain payable thereto.
SECTION 7.14 Limited Recourse; No Proceedings.
(a) The obligations of the Issuer under this Agreement, the Transaction Documents or any other agreement, instrument, document or certificate executed and delivered or issued by the Issuer in connection herewith are solely the obligations of the Issuer to pay any amounts hereunder or under the Transaction Documents shall be limited solely to the application of amounts available pursuant to the Indenture. No recourse shall be had for the payment of any fee or any other obligations or claim arising out of or based upon this Agreement, the
Transaction Documents or any other agreement, instrument, document or certificate executed and delivered or issued by the Issuer in connection herewith against any employee, officer, director, incorporator, agent or trustee of the Issuer or any Affiliate of the Issuer.
(b) The Performance Guarantor, the Administrative Agent, each Managing Agent, and each Owner covenants and agrees that it shall not institute against, or join any other Person in instituting against the Transferor or the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
(c) Each of the parties hereto (each a Restricted Person) hereby agrees that it will not institute against any Conduit Purchaser or the Issuer, or join any other Person in instituting against any Conduit Purchaser or any Committed Purchaser that is a multi-seller asset-backed commercial paper conduit, any proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights, present a petition for the winding up or liquidation of a Conduit Purchaser, a Committed Purchaser that is a multi-seller asset-backed commercial paper conduit, or the Issuer, or seek the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for a Conduit Purchaser or a Committed Purchaser that is a multi-seller asset-backed commercial paper conduit, or for all or substantially all of any such Persons assets prior to the date that is one year and a day (or, if longer, the applicable preference period then in effect) after the last day on which any senior indebtedness issued by a Conduit Purchaser shall have been outstanding. Nothing in the foregoing clause shall limit the right of any Restricted Person to file any claim in or otherwise take any action with respect to any proceeding of the type described herein that was instituted against a Conduit Purchaser or a Committed Purchaser that is a multi-seller asset-backed commercial paper conduit by any Person other than such Restricted Person.
SECTION 7.15 Survival of Representations and Warranties. All representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement, the purchase of the Series 2017-VFN Notes hereunder, any transfer of Series 2017-VFN Notes, and the termination of this Agreement.
SECTION 7.16 No Recourse.
(a) No Conduit Purchaser shall, or shall be obligated to, fund or pay any amount pursuant to any obligation under this Agreement unless such Conduit Purchaser has received funds which may be used to make such funding or other payment and which funds are not required to repay Commercial Paper Notes issued by, or finance activities of, such Conduit Purchaser when due, and after giving effect to such payment, either (i) such Conduit Purchaser could issue Commercial Paper Notes to refinance all of its outstanding Commercial Paper Notes (assuming such outstanding Commercial Paper Notes matured at such time) in accordance with the program documents governing its commercial paper program or (ii) all of the Commercial Paper Notes are paid in full. The obligations of each Conduit Purchaser under this Agreement shall be solely the corporate obligations of such Conduit Purchaser. Any amount which such Conduit Purchaser does not advance pursuant to the operation of this paragraph shall not
constitute a claim (as defined in Section 101 of the Bankruptcy Code) against or obligation of such Conduit Purchaser for any such insufficiency.
(b) No recourse under any obligation, covenant or agreement of a Conduit Purchaser contained in this Agreement shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of such Conduit Purchaser, any Managing Agent, any Support Party, the Administrative Agent or any of their Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is solely a corporate obligation of such Conduit Purchaser, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of such Conduit Purchaser, any Managing Agent, any Support Party, the Administrative Agent or any of their Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of such Conduit Purchaser contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by such Conduit Purchaser of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement; provided, that the foregoing shall not relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or fraudulent omissions made by them.
SECTION 7.17 RBC Roles. RBC acts as Administrative Agent and a Managing Agent and Support Party for certain Conduit Purchasers, and may provide other services or facilities from time to time (the RBC Roles). Without limiting the generality hereof, each of the parties hereto hereby acknowledges and consents to any and all RBC Roles, waives any objections it may have to any actual or potential conflicts of interest caused by RBC acting as the Administrative Agent, a Managing Agent, or as a Support Party with respect to any Conduit Purchaser or RBC maintaining any of the RBC Roles, and agrees that in connection with any RBC Role may take, or refrain from taking, any action that it in its discretion deems appropriate.
SECTION 7.18 USA PATRIOT Act. Each Owner that is subject to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) (the Act) hereby notifies the Issuer that pursuant to the requirements of the Act, it is required to obtain, verify and record information that identifies the Issuer, which information includes the name and address of the Issuer and other information that will allow such Owner to identify the Issuer in accordance with the Act.
SECTION 7.19 Tax Characterization. Each party to this Agreement (a) acknowledges and agrees that it is the intent of the parties to this Agreement that, for federal, state and local tax purposes only, the Series 2017-VFN Notes will be treated as evidence of indebtedness secured by the Receivables, the Collateral and proceeds thereof and the Issuer will not be characterized as an association (or publicly traded partnership) taxable as a corporation, (b) agrees to treat the Series 2017-VFN Notes as indebtedness for federal, state and local tax purposes and (c) agrees that the provisions of this Agreement and all related Transaction Documents shall be construed to further these intentions of the parties.
SECTION 7.20 Accounting Treatment by Owners. Each party to this Agreement acknowledges and agrees that it is the intent of the Owners to treat the variable funding loan evidenced by its Series 2017-VFN Note as a lending for its purposes under GAAP, including but not limited to the purposes of Financial Accounting Standard No. 115 of the Financial Accounting Standards Board.
SECTION 7.21 Collections.
(a) Each of USCC (on behalf of the Seller) and the Transferor represents and warrants as to itself that each remittance of Collections by the Seller to the Transferor under the Receivables Purchase Agreement will have been (i) in payment of a debt or other obligation incurred by the Seller, in the ordinary course of business or financial affairs of the Seller and the Transferor and (ii) made in the ordinary course of business or financial affairs of the Seller and the Transferor.
(b) Each of the Transferor and the Issuer represents and warrants as to itself that each remittance of Collections by the Transferor to the Servicer, on behalf of the Issuer, under the Transfer and Servicing Agreement will have been (i) in payment of a debt or other obligation incurred by the Transferor in the ordinary course of business or financial affairs of the Transferor and the Issuer and (ii) made in the ordinary course of business or financial affairs of the Transferor and the Issuer.
(c) Each of the Issuer and the Managing Agents party hereto, on behalf of their respective Ownership Group, represent that the payment of interest on and principal of the Series 2017-VFN Notes will have been (i) in payment of a debt incurred by the Issuer in the ordinary course of business or financial affairs on the part of the Issuer and the Series 2017-VFN Noteholders and (ii) made in the ordinary course of business or financial affairs of the Issuer and the Series 2017-VFN Noteholders.
SECTION 7.22 Limitation of Liability of Owner Trustee. It is expressly understood and agreed by the parties hereto that (a) this document is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as owner trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by Wilmington Trust, National Association but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) Wilmington Trust, National Association has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Agreement, and (e) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Note Purchase Agreement to be duly executed by their respective officers as of the day and year first above written.
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USCC RECEIVABLES FUNDING LLC, | |
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USCC MASTER NOTE TRUST, | |
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[Signature Page to Series 2017-VFN Note Purchase Agreement]
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[Signature Page to Series 2017-VFN Note Purchase Agreement]
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[Signature Page to Series 2017-VFN Note Purchase Agreement]
EXHIBIT A
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of Schedule I hereto (this Supplement), among the Transferor Owner set forth in Item 2 of Schedule I hereto (the Transferor Owner), the Purchasing Owner set forth in Item 3 of Schedule I hereto (the Purchasing Owner), and the Managing Agent set forth in Item 4 of Schedule I hereto (in such capacity, the Agent) for the Ownership Group set forth in Item 5 of Schedule I hereto.
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in accordance with Section 6.1(e) of the Series 2017-VFN Note Purchase Agreement, dated as of December 20, 2017, among USCC Receivables Funding LLC, as Transferor, USCC Services, LLC, as Servicer, USCC Master Note Trust, as Issuer, United States Cellular Corporation, as Performance Guarantor, the Owners and the Managing Agents parties thereto and Royal Bank of Canada, as Administrative Agent (as from time to time amended, supplemented or otherwise modified in accordance with the terms thereof, the Note Purchase Agreement; unless otherwise defined herein, terms defined in the Note Purchase Agreement are used herein as therein defined);
WHEREAS, the Purchasing Owner (if it is not already an Owner party to the Note Purchase Agreement) wishes to become an Owner party to the Note Purchase Agreement and the Purchasing Owner wishes to acquire and assume from the Transferor Owner, certain of the rights, obligations and commitments under the Note Purchase Agreement; and
WHEREAS, the Transferor Owner wishes to sell and assign to the Purchasing Owner, certain of its rights, obligations and commitments under the Note Purchase Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Managing Agent of five counterparts of this Supplement, to each of which is attached a fully completed Schedule I and Schedule II, each of which has been executed by the Transferor Owner, the Purchasing Owner and the Managing Agent, the Managing Agent will transmit to the Servicer, the Issuer, the Indenture Trustee, the Transferor Owner and the Purchasing Owner a Transfer Effective Notice, substantially in the form of Schedule III to this Supplement (a Transfer Effective Notice). Such Transfer Effective Notice shall be executed by the Managing Agent and shall set forth, inter alia, the date on which the transfer effected by this Supplement shall become effective (the Transfer Effective Date). From and after the Transfer Effective Date the Purchasing Owner shall be an Owner party to the Note Purchase Agreement for all purposes thereof as a Conduit Purchaser or a Committed Purchaser, as specified on Schedule II to this Supplement.
(b) At or before 12:00 p.m., local time of the Transferor Owner, on the Transfer Effective Date, the Purchasing Owner shall pay to the Transferor Owner, in immediately available funds, an amount equal to the purchase price, as agreed between the Transferor Owner and such Purchasing Owner (the Purchase Price), of the portion set forth on
Schedule II hereto being purchased by such Purchasing Owner of the outstanding Note Principal Balance under the Series 2017-VFN Note owned by the Transferor Owner (such Purchasing Owners Owner Percentage) and other amounts owing to the Transferor Owner under the Note Purchase Agreement or otherwise in respect of the Series 2017-VFN Notes. Effective upon receipt by the Transferor Owner of the Purchase Price from the Purchasing Owner, the Transferor Owner hereby irrevocably sells, assigns and transfers to the Purchasing Owner, without recourse, representation or warranty, and the Purchasing Owner hereby irrevocably purchases, takes and assumes from the Transferor Owner, the Transferor Owners Owner Percentage of (i) the presently outstanding Note Principal Balance under the Series 2017-VFN Notes owned by the Transferor Owner and other amounts owing to the Transferor Owner in respect of the Series 2017-VFN Notes, together with all instruments, documents and collateral pertaining thereto, and (ii) the Transferor Owners Owner Percentage of (A) if the Transferor Owner is a Conduit Purchaser, the Owner Percentage of the Transferor Owner and the other rights and duties of the Transferor Owner under the Note Purchase Agreement, or (B) if the Transferor Owner is a Committed Purchaser, the Committed Percentage and the Commitment of the Transferor Owner and other rights, duties and obligations of the Transferor Owner under the Note Purchase Agreement. This Supplement is intended by the parties hereto to effect a purchase by the Purchasing Owner and sale by the Transferor Owner of interests in the Series 2017-VFN Notes, and it is not to be construed as a loan or a commitment to make a loan by the Purchasing Owner to the Transferor Owner. The Transferor Owner hereby confirms that the amount of the Note Principal Balance is $ and its Percentage Interest thereof is %, which equals $ as of , 200 . Upon and after the Transfer Effective Date (until further modified in accordance with the Note Purchase Agreement), the Owner Percentage or Committed Percentage, as applicable of the Transferor Owner and the Purchasing Owner and the Commitment and the Committed Percentage, if applicable, if any, of the Transferor Owner and the Purchasing Owner shall be as set forth in Schedule II to this Supplement.
(c) The Transferor Owner has made arrangements with the Purchasing Owner with respect to (i) the portion, if any, to be paid, and the date or dates for payment, by the Transferor Owner to the Purchasing Owner of any fees heretofore received by the Transferor Owner pursuant to the Note Purchase Agreement prior to the Transfer Effective Date and (ii) the portion, if any, to be paid, and the date or dates for payment, by the Purchasing Owner to the Transferor Owner of fees or interest received by the Purchasing Owner pursuant to the Note Purchase Agreement or otherwise in respect of the Series 2017-VFN Notes from and after the Transfer Effective Date.
(d) (i) All principal payments that would otherwise be payable from and after the Transfer Effective Date to or for the account of the Transferor Owner in respect of the Series 2017-VFN Notes shall, instead, be payable to or for the account of the Transferor Owner and/or the Purchasing Owner, as the case may be, in accordance with their respective interests as reflected in this Supplement.
(ii) All interest, fees and other amounts that would otherwise accrue for the account of the Transferor Owner from and after the Transfer Effective Date pursuant to the Note Purchase Agreement or in respect of the Series 2017-VFN Notes shall, instead, accrue for the account of, and be payable to or for the account of, the Transferor Owner and/or the Purchasing Owner, as the case may be, in accordance with their respective interests as reflected
in this Supplement. In the event that any amount of interest, fees or other amounts accruing prior to the Transfer Effective Date was included in the Purchase Price paid by the Purchasing Owner, the Transferor Owner and the Purchasing Owner will make appropriate arrangements for payment by the Transferor Owner to the Purchasing Owner of such amount upon receipt thereof from the Managing Agent.
(e) Concurrently with the execution and delivery hereof, the Purchasing Owner and its related Managing Agent will deliver to the Administrative Agent and the Issuer an executed Investment Letter in the form of Exhibit D to the Note Purchase Agreement.
(f) Each of the parties to this Supplement agrees and acknowledges that (i) at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Supplement, and (ii) the Managing Agent shall apply each payment made to it under the Note Purchase Agreement, whether in its individual capacity or as Managing Agent, in accordance with the provisions of the Note Purchase Agreement, as appropriate.
(g) By executing and delivering this Supplement, the Transferor Owner and the Purchasing Owner confirm to and agree with each other, the Managing Agent and the Owners as follows: (i) other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned hereby free and clear of any adverse claim, the Transferor Owner makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Note Purchase Agreement or the Transaction Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Note Purchase Agreement or any other instrument or document furnished pursuant thereto; (ii) the Transferor Owner makes no representation or warranty and assumes no responsibility with respect to the Issuer, the financial condition of the Receivables, the Transferor, the Servicer, the Seller, the Originators, the Performance Guarantor, USCC or the Indenture Trustee, or the performance or observance by the Issuer, the Transferor, the Servicer, the Seller, the Originators, the Performance Guarantor, USCC or the Indenture Trustee of any of their respective obligations under the Note Purchase Agreement or any Transaction Document or any other instrument or document furnished pursuant hereto; (iii) each Purchasing Owner confirms that it has received a copy of such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Supplement; (iv) each Purchasing Owner will, independently and without reliance upon the Administrative Agent, any Managing Agent (as defined in the Note Purchase Agreement) the Transferor Owner or any other Owner and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Note Purchase Agreement or the Transaction Documents; (v) the Purchasing Owner appoints and authorizes the Managing Agent and the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Note Purchase Agreement and the Transaction Documents as are delegated to the Managing Agent or the Administrative Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article VII of the Note Purchase Agreement; and (vi) each Purchasing Owner agrees (for the benefit of the Transferor Owner, the Administrative Agent, the Managing Agents (as defined in the Note
Purchase Agreement), the Owners, the Indenture Trustee, the Servicer and the Issuer) that it will perform in accordance with their terms all of the obligations which by the terms of the Note Purchase Agreement are required to be performed by it as an Owner.
(h) Schedule II hereto sets forth the revised Owner Percentage or the revised Committed Percentage, if applicable, and Commitment of the Transferor Owner, as applicable, the Owner Percentage or the Committed Percentage, if applicable, Commitment and Scheduled Commitment Termination Date of the Purchasing Owner, as applicable, and the initial Investing Office of the Purchasing Owner, as well as administrative information with respect to the Purchasing Owner.
(i) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be executed by their respective duly authorized officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
SCHEDULE I TO
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Series 2017-VFN Note Purchase Agreement, dated as of December 20, 2017, among USCC Receivables Funding LLC, as Transferor, USCC Master Note Trust, as Issuer, USCC Services, LLC, as Servicer, United States Cellular Corporation, as Performance Guarantor, the Owners and the Managing Agents parties thereto and Royal Bank of Canada, as Administrative Agent
Item 1: Date of Transfer Supplement:
Item 2: Transferor Owner:
Item 3: Purchasing Owner:
Item 4: Name of Agent:
Item 5: Name of Ownership Group:
Item 6: Signatures of Parties to Agreement:
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CONSENTED TO AND ACCEPTED BY: |
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[NAME OF MANAGING AGENT], as Managing Agent |
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ROYAL BANK OF CANADA, as Administrative Agent |
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SCHEDULE II TO
TRANSFER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS AND
PURCHASE AND COMMITTED PERCENTAGES
[Transferor Owner]
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Type of Owner: [Conduit Purchaser/Committed] |
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Owner Percentage: |
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Transferor Owner Percentage |
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Scheduled Commitment Termination Date:
Address for Notices:
Investing Office:
SCHEDULE III TO
TRANSFER SUPPLEMENT
Form of
Transfer Effective Notice
To: [Name and address of Issuer,
Servicer, Indenture Trustee, Administrative
Agent, Transferor Owner and
Purchasing Owner]
The undersigned, as Administrative Agent under the Series 2017-VFN Note Purchase Agreement, dated as of December 20, 2017, among USCC Receivables Funding LLC, as Transferor, USCC Master Note Trust, as Issuer, USCC Services, LLC, as Servicer, United States Cellular Corporation, as Performance Guarantor, the Owners and the Managing Agents parties thereto and Royal Bank of Canada, as Administrative Agent, acknowledges receipt of five executed counterparts of a completed Transfer Supplement. [Note: attach copies of Schedules I and II from such Agreement.] Terms defined in such Supplement are used herein as therein defined.
Pursuant to such Supplement, you are advised that the Transfer Effective Date will be , .
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Very truly yours, | |
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ROYAL BANK OF CANADA, | |
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EXHIBIT B
FORM OF FUNDING NOTICE
[Date]
U.S. Bank National Association
190 South LaSalle Street
Chicago, IL 60603
MK-IL-SL7C
Telephone: (312) 332-7456
Facsimile: (312) 332-7992
Attention: USCC Master Note Trust
Electronic Mail: Edwin.Janis@usbank.com
USCC Services, LLC,
as Servicer
30 N. LaSalle, Suite 4000
Chicago, IL 60602
Attention: John M. Toomey
Telephone: 312-592-5308
Facsimile: 608-830-5530
Electronic Mail: John.Toomey@tdsinc.com
USCC Services, LLC,
as Servicer
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Attention: Steven T. Campbell
Telephone: 773-399-4850
Facsimile: 773-399-8959
Electronic Mail: steve.campbell@uscellular.com
Royal Bank of Canada,
as Administrative Agent
200 Vesey Street
New York, New York 10281-8098
Attn: Securitization Finance
Telephone: (212)-428-6537
Email: conduit.management@rbccm.com
RE: USCC Master Note Trust
Series 2017-VFN Notes
Ladies and Gentlemen:
Pursuant to Section 3.2 of the Series 2017-VFN Note Purchase Agreement, dated as of December 20, 2017 (the Note Purchase Agreement) among USCC Receivables Funding LLC, as Transferor, USCC Master Note Trust, as Issuer, USCC Services, LLC, as Servicer, United States Cellular Corporation, as Performance Guarantor, the Owners and the Managing Agents parties thereto and Royal Bank of Canada, as Administrative Agent, the Issuer hereby irrevocably requests the Owners fund a Note Principal Balance Increase as follows. Terms used herein are used as defined in or for purposes of the Note Purchase Agreement.
1. The requested amount of such Note Principal Balance Increase is $ .
2. The date of such Note Principal Balance Increase is to occur is (the Increase Date).
3. All conditions precedent to such Note Principal Balance Increase set forth in Section 3.2 of the Note Purchase Agreement have been satisfied.
4. The proceeds of such Note Principal Balance Increase shall be remitted on the Increase Date in immediately available funds to [specify payment instructions].
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Very truly yours, | |
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USCC MASTER NOTE TRUST, as Issuer | |
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By: USCC Services, LLC, as Administrator | |
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EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Certificate of
Treasurer/Chief Operating Officer
The undersigned do hereby certify pursuant to Section 4.7(c)(iii) of the Series 2017-VFN Note Purchase Agreement dated as of December 20, 2017 (the Note Purchase Agreement) among USCC Receivables Funding LLC, as Transferor, USCC Master Note Trust, as Issuer, USCC Services, LLC, as Servicer, United States Cellular Corporation, as Performance Guarantor the Owners and Managing Agents party thereto, and Royal Bank of Canada, as Administrative Agent, that on, and as of the date hereof, [to his or her knowledge after due inquiry, no Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default has occurred and is continuing] [the nature and status of the existing (Default / Event of Default / Amortization Event / Potential Amortization Event / Servicer Default / Potential Servicer Default) is ].
Capitalized terms not otherwise defined herein have the meanings assigned to them in the Note Purchase Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Certificate this day of , 201 .
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USCC RECEIVABLES FUNDING LLC | |
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EXHIBIT D
FORM OF INVESTMENT LETTER
[Date]
USCC Master Note Trust
30 N. LaSalle, Suite 4000
Chicago, IL 60602
Attention: John M. Toomey
Telephone: 312-592-5308
Facsimile: 608-830-5530
Electronic Mail: John.Toomey@tdsinc.com
USCC Master Note Trust
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Attention: Steven T. Campbell
Telephone: 773-399-4850
Facsimile: 773-399-8959
Electronic Mail: steve.campbell@uscellular.com
U.S. Bank National Association,
as Indenture Trustee
111 Fillmore Ave
St. Paul, MN 55107
Attention: USCC Master Note Trust/Bondholder Services
Re: USCC Master Note Trust
Series 2017-VFN Notes (the Notes)
Ladies and Gentlemen:
Reference is hereby made to the Master Indenture, dated as of December 20, 2017 (as amended or supplemented from time to time, the Master Indenture), among USCC Master Note Trust (the Issuer), USCC Services, LLC, as servicer (the Servicer), and U.S. Bank National Association, as indenture trustee (in such capacity, the Indenture Trustee), as supplemented by the Series 2017-VFN Indenture Supplement, dated as of December 20, 2017, among the Issuer, the Servicer and the Indenture Trustee (as amended or supplemented from time to time, the Series 2017-VFN Indenture Supplement and, together with the Master Indenture, collectively, the Indenture). Capitalized terms used but not defined in this Investment Letter shall have the meanings assigned to such terms in Annex A to the Indenture, or the Note Purchase Agreement (as defined below), and if not defined in the Indenture or the Note Purchase Agreement, then such terms shall have the meanings assigned to them in
Regulation D (Regulation D) or Rule 144A (Rule 144A) under the Securities Act of 1933, as amended (the Securities Act).
This Investment Letter relates to the [transfer][initial funding] of the above-referenced Notes in an aggregate [initial] principal amount of U.S.$ [ ] [to] [by] the undersigned [, as a Managing Agent, Conduit Purchaser or Committed Purchaser, as applicable, and with respect to itself only] [(the Transferee)] [(the Initial Purchaser)] and is being delivered pursuant to [Section 6.1] [Section 4.5(b)] of the Series 2017-VFN Note Purchase Agreement, dated as of December 20, 2017, by and among USCC Receivables Funding LLC, as transferor (the Transferor), the Issuer, the Servicer, United States Cellular Corporation, as Performance Guarantor, Royal Bank of Canada, as Administrative Agent, and the Owners and Managing Agents party thereto from time to time (as amended or supplemented from time to time, the Note Purchase Agreement). In connection with [such transfer, the Transferee hereby, certifies that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture with respect to the Transferee and] [the initial funding, the Initial Purchaser] hereby represents, warrants and agrees for the benefit of the Issuer and the Registrar as follows:
(a) No Note or any interest therein may be sold or transferred (including by pledge or hypothecation) to any other Person (other than a Person that is an Owner immediately prior to such transfer) unless such sale or transfer is to a Qualified Institutional Buyer. Any purported transfer of the Notes to a transferee that does not comply with the requirements of this letter shall be null and void ab initio.
(b) The [Transferee] [Initial Purchaser] hereby represents and agrees with the Issuer as follows:
(i) The [Transferee] [Initial Purchaser] is (a) a Qualified Institutional Buyer, (b) aware that the sale of the Notes to it is being made in reliance on the exemption from registration provided by Rule 144A, and (c) acquiring the Notes for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer, and as to each of which the owner exercises sole investment discretion, and in a principal balance of not less than the minimum denomination of such Note for the purchaser and for each such account. Any purported transfer of the Notes to a purchaser that does not comply with the requirements of this paragraph shall be null and void ab initio. The Issuer may sell any Notes acquired in violation of the foregoing at the cost and risk of purported owner.
(ii) The Notes may not at any time be held by or on behalf of any Person that is not a Qualified Institutional Buyer.
(iii) The [Transferee] [Initial Purchaser] understands that the Notes are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, none of the Notes have been or will be registered under the Securities Act, and, if in the future the [Transferee] [Initial Purchaser] decides to offer, resell, pledge or otherwise transfer the Notes, such Notes may only be offered, resold, pledged or otherwise transferred in accordance with the Series 2017-VFN Indenture Supplement and the applicable
legends set forth on the Notes delivered to us. The [Transferee] [Initial Purchaser] acknowledges that no representation is made by the Transferor or the Issuer, as the case may be, as to the availability of any exemption under the Securities Act or any applicable state securities laws for resale of the Notes.
(iv) [Transferee] [Initial Purchaser] understands that an investment in the Notes involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances. The [Transferee] [Initial Purchaser] has had access to such financial and other information concerning the Issuer, the Receivables, the Servicer and the Notes as it deemed necessary or appropriate in order to make an informed investment decision with respect to its purchase of the Notes, including an opportunity to ask questions of and request information from the Servicer and the Issuer. The [Transferee] [Initial Purchaser] has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Notes, and the [Transferee] [Initial Purchaser] and any accounts for which it is acting is able to bear the economic risk of the [Transferees] [Initial Purchasers] or of its investment.
(v) In connection with the transfer of the Notes (a) none of the Issuer, the Servicer, the Transferor or the Indenture Trustee is acting as a fiduciary or financial or investment adviser for the [Transferee] [Initial Purchaser], (b) the [Transferee] [Initial Purchaser] is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Issuer, the Servicer, the Transferor, the Performance Guarantor, USCC or the Indenture Trustee other than in the most current offering memorandum for such Notes and any representations expressly set forth in a written agreement with such party, (c) none of the Issuer, the Servicer, the Transferor nor the Indenture Trustee has given to the [Transferee] [Initial Purchaser] (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (including legal, regulatory, tax, financial, accounting, or otherwise) of its purchase or the documentation for the Notes, (d) the [Transferee] [Initial Purchaser] has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers to the extent it has deemed necessary, and it has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Series 2017-VFN Indenture Supplement) based upon its own judgment and upon any advice from such advisers as it has deemed necessary and not upon any view expressed by the Issuer, the Servicer, the Transferor, the Performance Guarantor, USCC or the Indenture Trustee, (e) the [Transferee] [Initial Purchaser] has determined that the rates, prices or amounts and other terms of the purchase and sale of the Notes reflect those in the relevant market for similar transactions, (f) the [Transferee] [Initial Purchaser] is purchasing the Notes with a full understanding of all of the terms, conditions and risks thereof (economic and otherwise), and is capable of assuming and willing to assume (financially and otherwise) these risks, and (g)
the [Transferee] [Initial Purchaser] is a sophisticated investor familiar with transactions similar to its investment in the Notes.
(vi) Either (1) the [Transferee] [Initial Purchaser] is not and is not acting on behalf of (a) an employee benefit plan as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (b) a plan as defined in Section 4975 of the Code that is subject to Section 4975, (c) an entity whose underlying assets include plan assets by reason of such employee benefit plans or plans investment in the entity or (d) any governmental, church, non-U.S. or other plan subject to any federal, state, local or non-U.S. law that is substantially similar to Title I of ERISA or Section 4975 of the Code or (2) the [Transferees] [Initial Purchasers] purchase, holding and disposition of such Note (or interest therein) will not result in a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of any substantially similar applicable law.
(vii) The [Transferee] [Initial Purchaser] will not, at any time, offer to buy or offer to sell the Notes by any form of general solicitation or advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio or at a seminar or meeting whose attendees have been invited by general solicitations or advertising.
(viii) The [Transferee] [Initial Purchaser] is not acquiring the Notes with a view to the resale, distribution or other disposition thereof in violation of the Securities Act.
(ix) The [Transferee] [Initial Purchaser] will provide notice to each Person to whom it proposes to transfer any interest in the Notes of the transfer restrictions and representations set forth in the Series 2017-VFN Indenture Supplement, including the exhibits thereto.
(x) The [Transferee] [Initial Purchaser] acknowledges that the Notes do not represent deposits with or other liabilities of the Indenture Trustee, the Servicer, the Transferor or any entity related to any of them or any other purchaser of Notes. Unless otherwise expressly provided herein, each of the Indenture Trustee, the Servicer, the Transferor, any entity related to any of them and any other purchaser of Notes will not, in any way, be responsible for or stand behind the capital value or the performance of the Notes or the assets held by the Issuer. The [Transferee] [Initial Purchaser] acknowledges that acquisition of Notes involves investment risks including prepayment and interest rate risks, possible delay in repayment and loss of income and principal invested.
[Signature Page Follows]
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Very truly yours, | |
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[ ], | |
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as [Transferee] [Managing Agent] [Conduit Purchaser] [Committed Purchaser] | |
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By: |
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Name: |
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Title: |
EXHIBIT G
HEDGING REQUIREMENTS
Terms used in this Exhibit G shall have the meaning specified in (i) the Note Purchase Note Purchase Agreement, dated as of December 20, 2017 (the Note Purchase Agreement), among USCC Receivables Funding LLC, as Transferor (the Transferor), USCC Master Note Trust, as Issuer (the Issuer), USCC Services, LLC, individually and as Servicer (the Servicer), United States Cellular Corporation, as performance guarantor, the Owners party thereto, the Managing Agents party thereto and Royal Bank of Canada, as administrative agent, or if not defined therein, in the Series 2017-VFN Supplement (as defined in the Note Purchase Agreement).
(a) Until the Note Principal Balance have been reduced to zero and all amounts under this Indenture Supplement, the Note Purchase Agreement, the Fee Letter, the Administrative Agent Fee Letter, and all other applicable Transaction Documents have been repaid in full with respect to the Series 2017-VFN Notes, the Issuer shall maintain one or more Eligible Interest Rate Caps with an Eligible Cap Counterparty, in each case in accordance with the following requirements:
(i) such Eligible Interest Rate Caps shall, in aggregate, be in a notional amount, equal to (A) for any Payment Date prior to the Scheduled Commitment Termination Date, at least the Facility Limit, and (B) for any Payment Date after the Scheduled Commitment Termination Date, the notional amount as of the last Payment Date prior to the Scheduled Commitment Termination Date reduced by one twenty-fourth of such notional amount per month;
(ii) such Eligible Interest Rate Caps shall provide that the applicable Cap Counterpartys payment obligations be calculated by reference to the notional amount hedged thereunder and a per annum rate determined by reference to one-month LIBOR (as defined in the long-form confirmation, a form of which is provided in Exhibit F to the Note Purchase Agreement), determined for and taking effect as of the first day of each Interest Period;
(iii) such Eligible Interest Rate Caps shall provide for payments to be paid on the Business Day immediately prior to each Payment Date by the Cap Counterparty by transfer directly into the Collection Account for the benefit of the Owners;
(iv) such Eligible Interest Rate Caps shall provide for the Servicer to make the full up-front payment of any premium due upon entry by the Issuer into each Eligible Interest Rate Cap;
(v) such Eligible Interest Rate Caps have been pledged to secure the due and punctual payment of all amounts owing to the Managing Agents and their respective related Owners in connection with the Tranche Invested Amount of each such Owner; and
(vi) the Transferor (on behalf of the Issuer), the Servicer and the Administrative Agent shall have agreed on the strike rate for such Eligible Interest Rate Cap.
(b) In the event that, due to withdrawal or downgrade, a Cap Counterparty no longer meets the requirements of an Eligible Cap Counterparty, the Transferor (on behalf of the Issuer) shall, (A) as soon as reasonably possible, (i) arrange for the Cap Counterparty to post collateral as required in the long-form confirmation, a form of which is provided in Exhibit F to the Note Purchase Agreement, which will be deposited into a hedge collateral account (to be established at the time of such collateral posting) for the benefit of the Owners, (ii) obtain a guaranty of, or a contingent agreement of another Eligible Cap Counterparty to honor, the Cap Counterpartys obligations under the related Eligible Interest Rate Cap, or (iii) arrange for the adversely affected Cap Counterpartys obligations and rights under the related Eligible Interest Rate Cap to be assumed by and assigned to a replacement Eligible Cap Counterparty, and (B) within thirty (30) days of such occurrence, if the Cap Counterparty fails to comply with the requirements of (A) above, terminate the existing Eligible Interest Rate Cap and/or arrange for a new Eligible Interest Rate Cap with an Eligible Cap Counterparty.
(c) Upon execution of any Eligible Interest Rate Cap with an Eligible Cap Counterparty, the Issuer shall deliver the executed long-form confirmation related to such Eligible Interest Rate Cap to the Administrative Agent within three (3) Business Days.
ANNEX I
Agreed-Upon Procedures
Scope of Services:
· Review whether a selected sample of Receivables consists of Eligible Receivables at the time of conveyance.
· Review whether such selected sample of Receivables sold by the Transferor is stated as being assigned to the special-purpose vehicle in the Transferors books and records.
· Review whether the Credit and Collections Policies are being complied with in accordance with the terms of the Transaction Documents.
· Determine if accounts are being properly aged in accordance with the terms and methodology (note any receivables that may be aged in a non-conforming manner).
· Obtain a breakdown, by type, of dilutions and write-offs issued in a Collection Period and whether they are being applied in accordance with the Credit and Collection Policies.
· Review application of Collections under the Transaction Documents to determine if such Collections are being applied and remaining balances are being reflected in accordance with the Transaction Documents.
· Select a sample of Monthly Reports and re-perform certain calculations contained therein in accordance with the Transaction Documents.
· Review whether Excess Concentration limits are being applied in accordance to the Transaction Documents, as applicable.
· Review calculation of financial covenants, as applicable, to determine if such covenants are being calculated in accordance with the Transaction Documents.
· Review calculation of Dilution Ratio, Default Ratio and Delinquency Ratio, as applicable, to determine if such ratios are being calculated in accordance with the Transaction Documents.
· Review whether the Asset Base Deficiency test calculation is being properly completed in connection with the Transaction Documents.
Procedures:
· Sample selection: The adherence to the criteria set forth in the definition of Eligible Receivable shall be verified by means of a generally accepted procedure, with an appropriate sample size of Transferred Assets using random number generator as a generally accepted non-statistical sampling method to select the sample of Receivables. Sample selection will also be used to verify the above procedures and calculations.
SCHEDULE I
CONDUIT PURCHASER, COMMITTED PURCHASER, MANAGING AGENTS
AND RELATED INFORMATION
Name of |
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Name of |
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Name of |
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Ownership |
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Address/Telecopy for Notices |
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Account for Funds |
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Ownership |
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Ownership |
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Tranche Invested | ||
Thunder Bay Funding, LLC |
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Royal Bank of Canada |
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Royal Bank of Canada |
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Thunder Bay Funding, LLC Royal Bank of Canada, as Committed Purchaser, Managing Agent and Conduit Support Provider Delayed Funding Ownership Group |
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Thunder Bay Funding, LLC
Royal Bank of Canada With copies of Funding Notices to:
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Bank: ABA #: N/O: Account #: Acct. Ref: |
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$ |
100,000,000 |
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50 |
% |
$ |
0 |
[none] |
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The Toronto- |
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The Toronto- |
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The Toronto-
The Toronto-Dominion Bank, as Managing Agent
Delayed Funding Ownership Group (Y/N): Yes |
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The Toronto-Dominion Bank
With a copy to:
The Toronto-Dominion Bank TD North Tower, 25th Floor |
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From the Initial Closing Date to but excluding the first Note Principal Balance Increase:
Bank: Bank of America, New York, NY
N/O: ASG Asset Securitization
ABA #: 026009593
Account #: 1020-7414669
SWIFT Code: TDOMCATTTOR
Reference: USCC Master Note Trust (US Cellular)
Upon the first Note Principal Balance Increase and for all times thereafter:
Intermediary Bank: Bank of America, New York, NY USA
FED ABA #: 026009593
Beneficiary Bank: TD Canada Trust, 55 King Street West, Toronto
Swift Code: TDOMCATTTOR
Transit #: 1068
Beneficiary Account #: 1068-7302571
Beneficiary Name: Banner Trust |
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$ |
100,000,000 |
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50 |
% |
$ |
0 |
SCHEDULE II
NOTICE INFORMATION
Issuer: |
USCC Master Note Trust |
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30 N. LaSalle, Suite 4000 |
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Chicago, IL 60602 |
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Attention: John M. Toomey |
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Telephone: 312-592-5308 |
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Facsimile: 608-830-5530 |
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Electronic Mail: John.Toomey@tdsinc.com |
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With a copy to (which shall not constitute notice): |
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USCC Master Note Trust |
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8410 West Bryn Mawr Avenue |
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Chicago, Illinois 60631 |
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Attention: Steven T. Campbell |
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Telephone: 773-399-4850 |
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Facsimile: 773-399-8959 |
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Electronic Mail: steve.campbell@uscellular.com |
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and |
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Sidley Austin LLP |
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One S. Dearborn Street |
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Chicago, Illinois 60603 |
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Attention: Stephen P. Fitzell, General Counsel |
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Telephone: (312) 853-7379 |
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Facsimile: (312) 853-7036 |
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Electronic Mail: sfitzell@sidley.com |
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Transferor: |
USCC Receivables Funding LLC |
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30 N. LaSalle, Suite 4000 |
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Chicago, IL 60602 |
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Attention: John M. Toomey |
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Telephone: 312-592-5308 |
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Facsimile: 608-830-5530 |
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Electronic Mail: John.Toomey@tdsinc.com |
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With a copy to (which shall not constitute notice): |
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USCC Receivables Funding LLC |
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8410 West Bryn Mawr Avenue |
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Chicago, Illinois 60631 |
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Attention: Steven T. Campbell |
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Telephone: 773-399-4850 |
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Facsimile: 773-399-8959 |
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Electronic Mail: steve.campbell@uscellular.com |
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and |
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Sidley Austin LLP |
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One S. Dearborn Street |
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Chicago, Illinois 60603 |
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Attention: Stephen P. Fitzell, General Counsel |
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Telephone: (312) 853-7379 |
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Facsimile: (312) 853-7036 |
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Electronic Mail: sfitzell@sidley.com |
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Servicer: |
USCC Services, LLC |
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30 N. LaSalle, Suite 4000 |
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Chicago, IL 60602 |
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Attention: John M. Toomey |
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Telephone: 312-592-5308 |
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Facsimile: 608-830-5530 |
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Electronic Mail: John.Toomey@tdsinc.com |
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With a copy to (which shall not constitute notice): |
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USCC Services, LLC |
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8410 West Bryn Mawr Avenue |
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Chicago, Illinois 60631 |
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Attention: Steven T. Campbell |
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Telephone: 773-399-4850 |
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Facsimile: 773-399-8959 |
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Electronic Mail: steve.campbell@uscellular.com |
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and |
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Sidley Austin LLP |
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One S. Dearborn Street |
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Chicago, Illinois 60603 |
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Attention: Stephen P. Fitzell, General Counsel |
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Telephone: (312) 853-7379 |
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Facsimile: (312) 853-7036 |
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Electronic Mail: sfitzell@sidley.com |
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Performance Guarantor: |
United States Cellular Corporation |
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30 N. LaSalle, Suite 4000 |
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Chicago, IL 60602 |
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Attention: John M. Toomey |
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Telephone: 312-592-5308 |
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Facsimile: 608-830-5530 |
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Electronic Mail: John.Toomey@tdsinc.com |
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With a copy to (which shall not constitute notice): |
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United States Cellular Corporation |
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8410 West Bryn Mawr Avenue |
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Chicago, Illinois 60631 |
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Attention: Steven T. Campbell |
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Telephone: 773-399-4850 |
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Facsimile: 773-399-8959 |
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Electronic Mail: steve.campbell@uscellular.com |
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and |
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Sidley Austin LLP |
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One S. Dearborn Street |
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Chicago, Illinois 60603 |
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Attention: Stephen P. Fitzell, General Counsel |
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Telephone: (312) 853-7379 |
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Facsimile: (312) 853-7036 |
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Electronic Mail: sfitzell@sidley.com |
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Administrative Agent: |
Royal Bank of Canada |
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200 Vesey Street |
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New York, New York 10281-8098 |
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Attn: Securitization Finance |
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Telephone: (212)-428-6537 |
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Email: conduit.management@rbccm.com |
SCHEDULE III
ORGANIZATIONAL INFORMATION
United States Cellular Corporation: |
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Chief Executive Office; |
8410 West Bryn Mawr Avenue |
Principal Place of Business: |
Chicago, IL 60631 |
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Locations of Records: |
8410 West Bryn Mawr Avenue |
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Chicago, IL 60631 |
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Delaware Organizational |
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Identification Number: |
2024126 |
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Federal Employer |
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Identification Number: |
62-1147325 |
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Prior Name(s) in the Last 5 Years: |
None |
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USCC Receivables Funding LLC: |
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Chief Executive Office; |
8410 West Bryn Mawr Avenue |
Principal Place of Business: |
Chicago, IL 60631 |
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Locations of Records: |
8410 West Bryn Mawr Avenue |
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Chicago, IL 60631 |
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Delaware Organizational |
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Identification Number: |
6574612 |
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Federal Employer |
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Identification Number: |
38-4050222 |
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Prior Name(s) in the Last 5 Years: |
None |
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USCC Services, LLC: |
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Chief Executive Office; |
8410 West Bryn Mawr Avenue |
Principal Place of Business: |
Chicago, IL 60631 |
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Locations of Records: |
8410 West Bryn Mawr Avenue |
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Chicago, IL 60631 |
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Delaware Organizational |
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Identification Number: |
2555848 |
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Federal Employer |
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Identification Number: |
36-4046814 |
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Prior Name(s) in the Last 5 Years: |
USCC Services LLC (Del. LLC) |
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USCC Master Note Trust: |
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Chief Executive Office; |
8410 West Bryn Mawr Avenue |
Principal Place of Business: |
Chicago, IL 60631 |
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Locations of Records: |
8410 West Bryn Mawr Avenue |
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Chicago, IL 60631 |
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Delaware Organizational |
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Identification Number: |
6590928 |
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Federal Employer |
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Identification Number: |
32-6490609 |
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Prior Name(s) in the Last 5 Years: |
None |
PERFORMANCE GUARANTY
AND
PARENT UNDERTAKING AGREEMENT
This PERFORMANCE GUARANTY AND PARENT UNDERTAKING AGREEMENT, dated as of December 20, 2017 (as amended, restated, supplemented or otherwise modified from time to time, this Performance Guaranty), is made by UNITED STATES CELLULAR CORPORATION, a corporation organized under the laws of the State of Delaware, as guarantor (the Performance Guarantor) in favor of each Guaranteed Party (as defined below).
PRELIMINARY STATEMENTS:
(1) USCC EIP LLC (the Seller), as purchaser and certain originators (the Originators), as sellers, have entered into that certain Receivables Sale Agreement (as amended, restated, supplemented or otherwise modified from time to time, the Receivables Sale Agreement), dated as of March 17, 2017, pursuant to which the Originators have sold, and will from time to time sell, Receivables and Related Rights and other related collateral to the Seller.
(2) USCC Receivables Funding LLC (the Transferor), as purchaser and the Seller, as seller, have entered into that certain Receivables Purchase Agreement (as amended, restated, supplemented or otherwise modified from time to time, the Receivables Purchase Agreement), dated as of December 20, 2017, pursuant to which the Seller has sold, and will from time to time sell, Receivables and Related Rights and other related collateral to the Transferor.
(3) The Transferor, USCC Services, LLC (USCC Services), as servicer (in such capacity, the Servicer) and custodian, and USCC Master Note Trust (the Issuer) have entered into that certain Transfer and Servicing Agreement, dated as of December 20, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the Transfer and Servicing Agreement), pursuant to which the Transferor has transferred, and will from time to time transfer, Receivables and Related Rights and other related assets to the Trust, and the Servicer has agreed to service the Receivables and perform certain other obligations in connection therewith.
(4) The Issuer and U.S. Bank National Association, not in its individual capacity, but solely as indenture trustee (in such capacity, the Indenture Trustee), have entered into that certain Master Indenture, dated as of December 20, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the Indenture), pursuant to which the Trust may issue Notes on the date hereof and from time to time hereafter.
(5) The Trust, the Servicer, and the Indenture Trustee have entered into that certain Series 2017-VFN Indenture Supplement, dated as of December 20, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the Series 2017-VFN Supplement) to provide for, among other things, the creation and issuance of $200,000,000 maximum aggregate principal amount of Series 2017-VFN Floating Rate Asset Backed Notes (the Series 2017-VFN Notes) in accordance with Article II of the Indenture.
(6) The Transferor, the Issuer, the Servicer, the Performance Guarantor, the Owners (as defined in the Series 2017-VFN Note Purchase Agreement) from time to time party thereto, the Managing Agents (as defined in the Series 2017-VFN Note Purchase Agreement) from time to time party thereto, and Royal Bank of Canada, as administrative agent (the Administrative Agent) have entered into that certain Series 2017-VFN Note Purchase Agreement, dated as of December 20, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the Series 2017-VFN Note Purchase Agreement), pursuant to which the Owners have agreed to acquire and fund the Series 2017-VFN Notes and perform certain other obligations in connection therewith and the Transferor and the Servicer have agreed to perform certain obligations in connection therewith.
(7) The Issuer and USCC Services, in its capacity as administrator (in such capacity, the Administrator) have entered into that certain Administration Agreement, dated as of December 20, 2017 (the Administration Agreement), pursuant to which the Issuer has appointed the Administrator to perform certain duties in connection with (i) the Notes issued pursuant to the Indenture from time to time, (ii) the Collateral and (iii) the Equity Certificate, and to provide such additional services consistent with the terms of this Administration Agreement and the Transaction Documents as the Issuer and the Owner Trustee may from time to time request.
(8) The Originators, the Seller, and the Transferor are Subsidiaries of the Performance Guarantor.
(9) As a condition to the obligations pursuant to the Series 2017-VFN Note Purchase Agreement, the Performance Guarantor has agreed to provide this Performance Guaranty.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Performance Guarantor hereby agrees as follows:
Section 1. DEFINITIONS.
Capitalized terms used, but not otherwise defined herein shall have the respective meanings assigned thereto in Annex A to the Indenture (as defined below) or, if not defined therein, in the Series 2017-VFN Note Purchase Agreement, or if not defined therein, in the other Transaction Documents (as defined in Annex A to the Indenture).
Guaranteed Documents means the Transaction Documents to which any Guaranty Party is a party and each other document identified by the Performance Guarantor (in its sole discretion) in writing as a Guaranteed Document.
Guaranteed Obligations means, collectively, (i) all covenants, agreements, terms, and conditions to be performed and observed by the Originators under and pursuant to the Receivables Sale Agreement, (ii) all covenants, agreements, terms, conditions and indemnities to be performed and observed by the Seller under and pursuant to each of the Receivables Sale Agreement and the Receivables Purchase Agreement and each other document executed and delivered by the Seller pursuant to the Receivables Sale Agreement and the Receivables
Purchase Agreement, respectively, including, without limitation, the full and punctual payment of all sums which are or may become due and owing by the Seller under each of the Receivables Sale Agreement and the Receivables Purchase Agreement, whether for fees, expenses (including reasonable counsel fees), indemnified amounts or otherwise, whether upon any termination or for any other reason, (iii) all covenants, agreements, terms, conditions and indemnities to be performed and observed by the Administrator under and pursuant to the Administration Agreement, and each Transaction Document and each other document executed and delivered by the Administrator in its capacity as administrator for the Issuer, respectively, including, without limitation, the full and punctual payment of all sums which are or may become due and owing by the Administrator under the Administration Agreement, whether for fees, expenses (including reasonable counsel fees), indemnified amounts or otherwise, whether upon any termination or for any other reason, and (iv) all obligations of (1) USCC Services under and pursuant to each of the Transfer and Servicing Agreement, the Administration Agreement, the Indenture, the Series 2017-VFN Supplement and the Series 2017-VFN Note Purchase Agreement and each other document executed and delivered by the Servicer pursuant to the Transfer and Servicing Agreement, the Administration Agreement, the Indenture, the Series 2017-VFN Supplement and the Series 2017-VFN Note Purchase Agreement, respectively, including, without limitation, the full and punctual payment of all sums which are or may become due and owing by the Servicer under the each of the Transfer and Servicing Agreement, the Administration Agreement, the Indenture, the Series 2017-VFN Supplement and the Series 2017-VFN Note Purchase Agreement, whether for fees, expenses (including reasonable counsel fees), indemnified amounts or otherwise, whether upon any termination or for any other reason or (2) which arise pursuant to Article VII of the Transfer and Servicing Agreement as a result of its termination or replacement as Servicer.
Guaranteed Party means the Owners, the Managing Agents, and the Administrative Agent (on behalf of the Owners).
Guaranty Party means each of the Originators, the Seller, USCC Services (in its individual capacity and as Servicer, Custodian and Administrator) and any Successor Servicer which is an Affiliate of USCC Services.
Section 2. UNCONDITIONAL GUARANTY OF PERFORMANCE OF OBLIGATIONS.
(a) The Performance Guarantor hereby unconditionally and irrevocably guarantees to each of the Guaranteed Parties to cause the due and punctual performance and observance of the Guaranteed Obligations by the Guaranty Parties. Without limiting or expanding the foregoing, it is understood and agreed that the Guaranteed Obligations shall not include, and the Performance Guarantor shall not guaranty or otherwise be liable to any Person for (w) any losses, claims, damages, liabilities or expenses (except to the extent the Guaranty Party would be liable to any such Guaranteed Party under a Guaranteed Document for such losses, claims, damages, liabilities or expenses), (x) losses resulting from the performance or collectibility of the Receivables on account of insolvency, bankruptcy or lack of creditworthiness of the obligors, (y) the non-payment or late payment of any Receivable by the obligor thereof, or (z) any act, inaction, obligation or liability of any Person other than a Guaranty Party or the failure to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements,
undertakings and obligations on the part of such Person to be paid, performed or complied with by it under any of the Transaction Documents, this Performance Guaranty or otherwise. The Performance Guarantor shall be liable for the payment of all reasonable costs and expenses paid or incurred by a Guaranteed Party in connection with the collection of all or part of the Guaranteed Obligations from the Performance Guarantor to the extent such costs and expenses are not paid to the Guaranteed Party under the related Guaranteed Document.
(b) In connection with each representation, warranty and covenant made by the Seller pursuant to Articles IV and V of the Receivables Purchase Agreement with respect to the Receivables (and Related Rights):
(i) the Performance Guarantor hereby makes each such representation, warranty and covenant on behalf of each Originator that sells Receivables (and Related Rights) to the Seller pursuant to the Receivables Sale Agreement and guarantees the obligations of each such Originator in connection with any breach thereof or remedy relating thereto; and
(ii) the Performance Guarantor hereby makes each such representation, warranty and covenant on behalf of the Seller and guarantees the obligations of the Seller in connection with any breach thereof or remedy relating thereto, including but not limited to the repurchase and reassignment provisions of Article VII thereof
Section 3. VALIDITY OF OBLIGATIONS.
The Performance Guarantor agrees that its obligations under this Agreement shall be absolute and unconditional, irrespective of (i) the validity, enforceability, disaffirmance, settlement or compromise (by any Person other than one of the Guaranteed Parties, including a trustee in bankruptcy) of the Guaranteed Obligations due to the inability of a Guaranty Party to pay or perform such obligation, (ii) the absence of any attempt to collect the Guaranteed Obligations from a Guaranty Party, (iii) any change of the time, manner or place of performance or payment, or any other term of any of the Guaranteed Obligations, (iv) any law, regulation or order of any jurisdiction affecting any terms of any of the Guaranteed Obligations or rights of the Guaranteed Parties with respect hereto due to the inability of a Guaranty Party to pay or perform such obligation (including any estimation, reduction or valuation of the Guaranteed Obligations made in connection with any proceedings involving a Guaranty Party or the Performance Guarantor filed under the Federal Bankruptcy Code, whether pursuant to Section 502 of the Federal Bankruptcy Code or any other Section thereof), and (v) any other circumstance that would otherwise constitute a legal or equitable discharge or defense of a guarantor. The Performance Guarantor further agrees that, to the extent that a Guaranty Party on its own behalf pursuant to the Transaction Document, makes a payment or payments to the Guaranteed Parties in respect of the Guaranteed Obligations which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to its estate, trustee, receiver or any other party, under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Guaranteed Obligations or part thereof that has been paid, reduced or satisfied by such amount
shall be reinstated and continue in full force and effect as of the date such initial payment, reduction or satisfaction occurred. The Performance Guarantor waives all set-offs and counterclaims and all presentments, demands for performance, notices of dishonor and notices. After all of the Guaranteed Obligations have been performed or satisfied in full, the Performance Guarantor shall be subrogated to the rights and remedies of the Guaranteed Parties with respect to any Guaranty Party. The Performance Guarantor agrees that its obligations under this Performance Guaranty shall be irrevocable.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE PERFORMANCE GUARANTOR.
The Performance Guarantor hereby represents and warrants to the Guaranteed Parties as of the Initial Closing Date, the Initial Addition Date, each subsequent Closing Date and on each Addition Date that:
(a) Organization and Good Standing. It is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, with the power and authority under its organizational documents and under the laws of Delaware to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement.
(b) Licenses and Approvals. It is duly qualified to do business and is in good standing as a foreign corporation (or is exempt from such requirements) and has obtained all necessary licenses and approvals in order to be able to execute, deliver and perform its obligations under this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement, in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to do so would not have a Material Adverse Effect.
(c) Power and Authority. It has the power and authority to execute and deliver this Performance Guaranty and to perform its obligations hereunder and thereunder; and the execution, delivery and performance of this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement, and the consummation by it of the transactions provided for or contemplated thereby, have been duly authorized by it by all necessary corporate action.
(d) Binding Obligation. Each of this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement constitutes the legal, valid and binding obligations of it, enforceable against it in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights generally and to general principles of equity, whether applied in a proceeding in equity or at law.
(e) No Violation. The execution and delivery of this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement, the performance of the transactions contemplated by this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement, and the fulfillment of the terms of this Performance Guaranty and the Series
2017-VFN Note Purchase Agreement by it, will not conflict with, result in any breach of any of the terms or provisions of or constitute (with or without notice or lapse of time or both) a default under, its organizational documents or any indenture, agreement, mortgage, deed of trust or other instrument to which it is a party or by which it or its properties is bound, or violate any material Requirements of Law applicable to it.
(f) No Proceedings. There are no actions, suits, proceedings or investigations pending, or to its knowledge threatened, against it before any court, arbitrator or Governmental Authority having jurisdiction over it: (i) asserting the invalidity of this Performance Guaranty or the Series 2017-VFN Note Purchase Agreement; (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Performance Guaranty; or (iii) seeking any determination or ruling that would have a Material Adverse Effect. It is not in default with respect to any order, judgment or decree of any court, arbitrator or Governmental Authority.
(g) No Consents. No consent, license, approval, registration, authorization or declaration of or with any Governmental Authority or other Person is necessary in connection with the execution of delivery of this Performance Guaranty or the Series 2017-VFN Note Purchase Agreement, or performance of the transactions contemplated hereby or thereby, that has not already been obtained except where the failure to so obtain would not have a material adverse effect on the ability of the Performance Guarantor to perform its obligations hereunder.
(h) Financial Statements. (i) The audited consolidated balance sheet of the Performance Guarantor and its consolidated subsidiaries as of December 31, 2016 and the related consolidated statements of income and cash flows for the fiscal year then ended, delivered to the Administrative Agent on or prior to the Initial Closing Date, fairly present, in conformity with GAAP, the consolidated financial position of the Performance Guarantor and its consolidated subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year; and (ii) the unaudited consolidated balance sheet of the Performance Guarantor and its consolidated subsidiaries as of September 30, 2017 and the related unaudited consolidated statements of income and cash flows for the three months and nine months then ended, delivered to the Administrative Agent on or prior to the Initial Closing Date, fairly present in all material respects, in conformity with GAAP applied on a basis consistent with the financial statements referred to in clause (i) above (except as described in the notes thereto), the financial position of the Performance Guarantor and its consolidated subsidiaries as of such date and their consolidated results of operations and cash flows for such three month period (subject to normal year-end adjustments).
(i) ERISA. (i) Each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan, and (ii) no ERISA Event has occurred.
(j) Anti-Money Laundering. The Performance Guarantor warrants that it is acting on its own behalf with respect to all matters associated with this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement. The Performance Guarantor undertakes to
provide each Managing Agent and Owner, upon its reasonable request, with all information and documents which such Managing Agent or Owner requires in order to comply with its obligations under all applicable anti-money laundering laws.
(k) Regulation RR. The Performance Guarantor, as sponsor, is the appropriate entity to comply with all requirements imposed on the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. §246.1, et seq. (the Credit Risk Retention Rules) implementing the credit risk retention requirements of Section 15G of the Exchange Act, in each case directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules, each a Wholly-Owned Affiliate). The Performance Guarantor or one or more of its Wholly-Owned Affiliates (which will initially be the Transferor) complies in all material respects with the Credit Risk Retention Rules and satisfies the Credit Risk Retention Rules by maintaining a sellers interest (as defined in the Credit Risk Retention Rules) in the Issuer of not less than five percent (5%) of the aggregate unpaid principal balance of all outstanding investor ABS interests (as defined in the Credit Risk Retention Rules) of the Issuer, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
(l) Ownership of the Transferor. It owns of record all of the issued and outstanding membership interests of the Transferor, all of which have been validly issued, are fully paid and nonassessable and are owned free and clear of all Liens, warrants, options and rights to purchase.
Section 5. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ORIGINATORS
The Performance Guarantor hereby represents and warrants to the Guaranteed Parties as of the Initial Closing Date, the Initial Addition Date, each subsequent Closing Date and on each Addition Date that:
(a) Due Qualification. Each Originator is duly qualified to do business as a foreign company and is in good standing in each jurisdiction in which the character of the business transacted by it or properties owned or leased by it requires such qualification and in which the failure so to qualify could reasonably be expected to have a material adverse effect on the business, properties, assets, or condition (financial or otherwise) of the Seller, any such Originator or the Transferor, or the Sellers or such Originators ability to perform its respective duties under the Receivables Sale Agreement, the Receivables Purchase Agreement and the other Transaction Documents to which it is a party, as applicable.
(b) Licensing. Each Originator is properly licensed in each jurisdiction to the extent required by the laws of such jurisdiction in order to originate, acquire or own the Receivables and to sell the Receivables as contemplated by the Receivables Sale Agreement.
(c) Authorization; Binding Obligation. Each Originator has the power and authority to make, execute, deliver and perform the Receivables Sale Agreement and all of the
transactions contemplated under the Receivables Sale Agreement, and has taken all necessary limited liability company or corporate action, as applicable, to authorize the execution, delivery and performance of the Receivables Sale Agreement. The Receivables Sale Agreement has been duly executed and delivered by each such Originator, as applicable, and constitutes the legal, valid and binding obligation of the each such Originator, enforceable in accordance with its terms, except as enforcement of such terms may be limited by applicable Insolvency Laws, any applicable law imposing limitations upon, or otherwise affecting, the availability or enforcement of rights to indemnification hereunder, and by the availability of equitable remedies.
(d) All Consents. All authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by each Originator in connection with the execution and delivery by each Originator of the Receivables Sale Agreement and the performance of the transactions contemplated by the Receivables Sale Agreement by each such Originator have been duly obtained, effected or given and are in full force and effect, except for those which the failure to obtain would not have a material adverse effect on the Receivables Sale Agreement or the transactions contemplated thereby or under the Transaction Documents or on the ability of any such Originator to perform its obligations under the Receivables Sale Agreement.
(e) No Violations. Each Originators execution, delivery and performance of the Receivables Sale Agreement will not violate any material provision of any existing law or regulation or any order or decree of any court or the certificate of formation, certificate of incorporation, bylaws or limited liability company agreement, as applicable, of any such Originator, as applicable, or constitute a material breach of any mortgage, indenture, contract or other agreement to which any such Originator is a party or by which it or any of its properties may be bound.
(f) No Conflict. The execution and delivery by each Originator of the Receivables Sale Agreement and the performance by each Originator of the transactions contemplated by the Receivables Sale Agreement and the fulfillment by each Originator of the terms thereof applicable to each such Originator, as applicable, will not conflict with or violate any organizational documents or by-laws applicable such Originator, or conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any material indenture, contract, agreement, mortgage, deed of trust or other instrument to which such Originator, as applicable, is a party or by which it or its properties are bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on any Originator or the transactions contemplated by, or its ability to perform its obligations under, the Receivables Sale Agreement).
(g) No Proceedings. There are no Proceedings or investigations pending or, to the best knowledge of the Performance Guarantor, threatened, against any Originator before any Governmental Authority (i) asserting the invalidity of the Receivables Sale Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by the Receivables Sale Agreement, (iii) seeking any determination or ruling that, in the reasonable
judgment of such Originator, would materially and adversely affect the performance by such Originator of its respective obligations under the Receivables Sale Agreement, or (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of the Receivables Sale Agreement which, in each case, if adversely determined would be reasonably likely to result in a material adverse effect on the transactions contemplated by, or such Originators ability to perform its respective obligations under, the Receivables Sale Agreement.
(h) Insolvency. No Insolvency Event with respect to any Originator has occurred and each transfer of the Receivables and the related Purchased Assets by each Originator to the Seller, and by the Seller to the Purchaser, has not been made in contemplation of the occurrence thereof.
Section 6. COVENANTS
The Performance Guarantor covenants and agrees through the Series 2017 VFN Stated Maturity Date, that:
(a) Performance by Originators. It will cause the Originators and the Seller to perform and observe for the benefit of the Owners each of the covenants and agreements required to be performed or observed by the Seller in the Transaction Documents to which it is a party.
(b) Compliance with Requirements of Law. It shall cause (i) the Seller and each Originator to duly satisfy all obligations on its part to be fulfilled under or in connection with the Trust Assets and the related Receivables; (ii) each Originator, the Seller, the Servicer and the Transferor to maintain in effect all material qualifications required under applicable Requirements of Law in order for the Servicer to properly service the Trust Assets and the related Receivables; and (iii) each such entity to comply in all material respects with all other applicable Requirements of Law in connection with the Servicers servicing of the Trust Assets and the related Receivables.
(c) Limitation on Transactions with the Transferor and the Issuer. It will not, and shall cause the Seller and the Originators not to, enter into, or be a party to any transaction with the Transferor or the Issuer, except for (i) the transactions contemplated by the Transaction Documents; (ii) capital contributions by USCC Services to the Transferor which are in compliance with the Transaction Documents; and (iii) to the extent not otherwise prohibited under the Transaction Documents, other transactions in the nature of employment contracts and directors fees, upon fair and reasonable terms materially no less favorable to the Transferor or the Issuer than would be obtained in a comparable arms length transaction with a Person not an Affiliate.
(d) Risk Retention Requirement. The Performance Guarantor, as sponsor, will cause the Transferor to comply with its obligations under Section 4.04 of the Transfer and Servicing Agreement.
(e) Compliance with Covenants. It will perform and observe for the benefit of the Owners each of the covenants and agreements required to be performed or observed by it in this Performance Guaranty and the Series 2017-VFN Note Purchase Agreement (and, to the extent applicable, under the Transaction Documents).
(f) Financial Reporting. It shall furnish to the Administrative Agent and each Managing Agent, as soon as practicable after the issuance, sending or filing thereof, but in no event any later than 30 days after sending copies of all proxy statements, financial statements, reports and other communications which the Performance Guarantor sends to its security holders generally, and if the Performance Guarantor is required to file reports with the Commission pursuant to the Securities Exchange Act of 1934, as amended, copies of all regular, periodic and special reports which the Performance Guarantor files with the Commission or with any securities exchange on Form 10-K, 10-Q, 8-K or any successor form thereto; provided, that the requirements of this Section 4.8(b) may be satisfied by the timely filing of any such report with the Commission if such report is available via EDGAR or the Performance Guarantors website.
(g) Reporting. The Performance Guarantor will maintain a system of accounting established and administered in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent, each Managing Agent and the Indenture Trustee (which shall make such information available to the Noteholders) and each Managing Agent:
(i) within 120 days after the close of each of its fiscal years, audited financial statements (which shall include balance sheets, statements of income and retained earnings and a statement of cash flows) of the Performance Guarantor and its consolidated subsidiaries for such fiscal year, and copies of all reports and management letters, if any, from the independent certified public accountants to the Performance Guarantor, all certified by the chief financial officer of the Performance Guarantor; provided, that the requirements of this clause (i) may be satisfied by the timely filing of any such report with the Commission if such report is available via EDGAR or the Performance Guarantors website;
(ii) within 60 days after the close of the first three (3) quarterly periods of each of its respective fiscal years, balance sheets of the Performance Guarantor and its consolidated subsidiaries, as at the close of each such period and statements of income and retained earnings and a statement of cash flows for the Performance Guarantor for the period from the beginning of such fiscal year to the end of such quarter, all certified by the chief financial officer of the Performance Guarantor; provided, that the requirements of this clause (ii) may be satisfied by the timely filing of any such report with the Commission if such report is available via EDGAR or the Performance Guarantors website; and
(iii) promptly, from time to time, such other information, documents, records or reports relating to the condition or operations, financial or otherwise, of the Performance Guarantor as any Managing Agent may from time to time reasonably request.
(h) Notices. It will notify each Managing Agent in writing of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, such written notice shall be accompanied by a statement of the chief financial officer or chief accounting officer of the Performance Guarantor describing the steps, if any, being taken with respect thereto:
(i) any Asset Base Deficiency, Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default, and in any event within five (5) days;
(ii) the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Performance Guarantor or any of its subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or the entry of any judgment or decree against the Performance Guarantor or any of its subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and in any event within ten (10) Business Days; and
(iii) any material adverse change in the business, operations or financial condition of the Performance Guarantor which reasonably could have a material adverse effect on the ability of the Performance Guarantor to perform its obligations under this Performance Guaranty or the Transaction Documents.
(i) Maintain Existence. It will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in good standing as a corporation in each jurisdiction where its business is conducted and which requires such qualification, and will maintain all requisite authority to conduct its business in each jurisdiction in which its business requires such authority.
(j) Compliance with Requirements of Law. It shall duly satisfy all obligations on its part to be fulfilled under or in connection with the Transaction Documents and this Performance Guaranty, will maintain in effect all material qualifications required under applicable Requirements of Law in order to conduct its business and will comply in all material respects with all other applicable Requirements of Law in connection with the Transaction Documents and this Performance Guaranty.
(k) Fulfillment of Obligations. It will duly observe and perform, or cause to be observed or performed, all material obligations and undertakings on its part to be observed and performed under this Performance Guaranty and the Transaction Documents, and will do nothing to materially impair the rights, title and interest of the Indenture Trustee, the Administrative Agent, any Managing Agent or any Owner in and to the Collateral.
(l) ERISA Reporting and Covenant.
(i) Promptly upon becoming aware of the occurrence of any ERISA Event which together with all other ERISA Events occurring within the prior
twelve (12) months could reasonably be expected to involve a payment of money by or an aggregate liability of any member of the ERISA Group or any combination of such entities in excess of $10,000,000, the Performance Guarantor shall give the Administrative Agent and each Managing Agent a written notice specifying the nature thereof, what action the Performance Guarantor or any member of the ERISA Group has taken and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto.
(ii) Promptly upon receipt thereof, the Performance Guarantor shall furnish to the Administrative Agent and each Managing Agent copies of (x) all notices received by any member of the ERISA Group of the PBGCs intent to terminate any Plan or to have a trustee appointed to administer any Plan; (y) all notices received by any member of the ERISA Group from the sponsor of a Multiemployer Plan pursuant to Section 4202 of ERISA involving an aggregate withdrawal liability of such member of any other member or members of the ERISA Group in excess of $10,000,000; and (z) all funding waiver requests filed by any member of the ERISA Group with the Internal Revenue Service with respect to any Plan.
(iii) The Performance Guarantor shall not permit any event or condition which is described in the definition of ERISA Event to occur or exist with respect to any Plan or Multiemployer Plan if such event or condition, together with all other events or conditions described in the definition of ERISA Event occurring within the prior twelve (12) months, involves the payment of money by or an incurrence of liability of the Performance Guarantor or any member of the ERISA Group in an aggregate amount that would have a Material Adverse Effect on the Performance Guarantor or the Issuer.
(m) Ratings of Commercial Paper Notes. To the extent that any rating provided with respect to a Conduit Purchasers Commercial Paper Notes by any rating agency is conditional upon the furnishing of documents or the taking of any other action by the Performance Guarantor, then such party, as applicable, shall take all reasonable actions to furnish such documents and take any such other action.
(n) Information from the Performance Guarantor. So long as any Series 2017-VFN Notes remain outstanding, the Performance Guarantor (for itself and on behalf of the Seller and the Originators) will furnish to the Administrative Agent and each Managing Agent:
(i) a copy of each certificate, opinion, report, statement, notice or other communication (other than investment instructions) furnished by or on behalf of such party to the Indenture Trustee or any Rating Agency under the Indenture or the Series 2017-VFN Supplement or any other Transaction Document, concurrently therewith, and promptly after receipt thereof, a copy of each notice, demand or other communication received by or on behalf of such party under the Indenture or the Series 2017-VFN Supplement; and
(ii) such other information (including non-financial information), documents, records or reports reasonably related to the Transaction Documents or the transactions contemplated thereby and respecting the Issuer, the Receivables, the Transferor, the Seller, the Originators, the Performance Guarantor and the Servicer, as the Administrative Agent, any Conduit Purchaser or any Managing Agent may from time to time reasonably request.
(iii) promptly following the sending or filing thereof, copies of all registration statements which the Transferor, the Seller, the Performance Guarantor or the Servicer files with the Commission or any national securities exchange in connection with the Issuer, the Indenture, the Series 2017-VFN Supplement or any Series 2017-VFN Notes.
(o) Amendments. The Performance Guarantor will not, and will cause the Seller, the Originators, the Servicer and the Transferor not to, make, or permit any Person to make, any amendment, modification or change to, or provide any waiver under the Transaction Documents except in accordance with Section 7.1(c) of the Series 2017-VFN Note Purchase Agreement.
(p) Revision of Eligibility Criteria. The Performance Guarantor agrees that it will not, and will cause its Affiliates not to, modify, amend or delete any portion of the definition of Eligible Institution, Eligible Investments, Eligible Receivable or Eligible Servicer, except in accordance with the provisions of Section 7.1(c) of the Series 2017-VFN Note Purchase Agreement.
(q) Merger or Consolidation of, or Assumption, of the Obligations of the Performance Guarantor. Any Person (i) into which the Performance Guarantor may be merged or consolidated, (ii) resulting from any merger or consolidation to which the Performance Guarantor shall be a party, (iii) that acquires by conveyance, transfer or lease substantially all of the assets of the Performance Guarantor, or (iv) succeeding to the business of the Performance Guarantor, which Person shall execute an agreement of assumption to perform every obligation of the Performance Guarantor under this Performance Guaranty, shall be the successor to the Performance Guarantor under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties to this Agreement. The Performance Guarantor shall provide notice of any merger, consolidation, succession, conveyance or transfer pursuant to this section to each Managing Agent.
(r) Notwithstanding the foregoing, the Performance Guarantor will not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the Performance Guarantor is merged or the Person which acquires by conveyance or transfer the properties and assets of the Performance Guarantor substantially as an entirety shall be a Person organized and existing under the laws of the United States of America or any State or the District of Columbia and, if the Performance
Guarantor is not the surviving Person, such Person shall assume, without the execution or filing of any paper or any further act on the part of any of the parties hereto, the performance of every covenant and obligation of the Transferor or the Seller, as applicable, hereunder;
(ii) immediately after giving effect to such transaction, no representation or warranty made pursuant to Article III of the Series 2017-VFN Note Purchase Agreement shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and no Default, Event of Default, Amortization Event, Potential Amortization Event, Servicer Default or Potential Servicer Default shall have occurred; and
(iii) the Performance Guarantor has delivered to the Administrative Agent and each Managing Agent an Officers Certificate stating that such consolidation, merger, conveyance or transfer complies with this Section 5(r), and that all conditions precedent herein provided for relating to such transaction have been complied with, and an Opinion of Counsel to the effect that the agreement referred to in Section 4.10(b)(iv) above is the legal, valid and binding obligation of such successor Person enforceable against such successor Person in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally from time to time in effect and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity).
(s) Separate Existence. The Performance Guarantor will take all reasonable steps (including, without limitation, all steps necessary or that the Administrative Agent may from time to time reasonably request) to maintain the Sellers, the Transferors and the Issuers identity as a separate legal entity from it and to make it manifest to third parties that each of the Transferor and the Issuer is an entity with assets and liabilities distinct from those of it and each of its other Affiliates. Without limiting the generality of the foregoing, the Performance Guarantor shall:
(i) cause the board of directors or managers of the Transferor to at all times have at least one (1) member of which is an Independent Director;
(ii) cause the Transferor to conduct its affairs strictly in accordance with its limited liability company agreement and to observe all necessary, appropriate and customary company formalities as a distinct entity, and ensure that all company actions relating to (A) the selection, maintenance or replacement of any Independent Director, (B) its dissolution or liquidation or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding of it are duly authorized by unanimous vote of its board of directors or managers (including the Independent Directors);
(iii) maintain its books and records separate from those of the Transferor and the Issuer and maintain records of all intercompany debits and credits and transfers of funds made by it on the Transferors or the Issuers behalf;
(iv) except as otherwise contemplated under the Transaction Documents, prevent the commingling of its funds or other assets with those of the Transferor and the Issuer, and not maintain bank accounts or other depository accounts to which the Transferor or the Issuer is an account party, into which the Transferor or the Issuer makes deposits or from which the Transferor or the Issuer has the power to make withdrawals except as otherwise contemplated under the Transaction Documents with respect to the Issuers or the Servicers administration of Collections on the Receivables;
(v) not enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with the Transferor or the Issuer which is on terms that are less favorable to it than those that might be obtained in an arms length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;
(vi) not pay the operating expenses and liabilities of the Transferor or the Issuer;
(vii) conduct its business separate and distinct from the offices of, or any space occupied by, the Transferor or the Issuer and allocate fairly with the Transferor and the Issuer any overhead, if relevant, for shared office space or business facilities or equipment;
(viii) conduct its business and act solely in its own name, through its own officials or representatives where relevant, and not hold the Transferor or the Issuer out as a division or part of it (although litigation may be filed with respect to the Collections in the name of the Servicer);
(ix) have stationery and other business forms and a telephone number separate from that of the Transferor or the Issuer;
(x) cause any financial statements consolidated with those of the Transferor or the Issuer to state that the Transferors and Issuers business consists of the purchase of Receivables from it and that each of the Transferor and the Issuer is a separate legal entity with its own separate creditors who, in any liquidation of the Transferor or the Issuer, will be entitled to be satisfied out of the Transferor or the Issuers assets prior to any value in the Transferor or the Issuer becoming available to the Transferors or the Issuers equity holders; and
(xi) take all other actions reasonably necessary on its part to operate its business and perform its obligations under the Transaction Documents in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation and true sale matters of Sidley Austin LLP delivered to the Indenture
Trustee, the Administrative Agent and the Managing Agents pursuant to Transaction Documents on the Initial Closing Date to the extent applicable to it.
Section 7. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Performance Guaranty, and no consent to any departure by the Performance Guarantor herefrom, shall in any event be effective unless the same shall be in writing and signed by the Performance Guarantor and consented to in writing by all of the Guaranteed Parties, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Section 8. ADDRESSES FOR NOTICES.
All notices and other communications provided for hereunder shall, unless otherwise stated herein be in writing (including email and facsimile communication) and shall be delivered or sent by email or facsimile, or by mail, overnight mail or messenger, to the intended Person at the mailing address or facsimile number of such Person set forth, with respect to the Performance Guarantor, under its name on the signature pages hereof and, with respect to any Guaranteed Party or any other Person, the address specified for such Person in the Transaction Documents, or, in each case, at such other address, email address or facsimile number as shall be designated by such Person in a written notice to the other signatories hereto. All such notices and communications shall be effective (i) if delivered by standard mail, overnight mail or messenger, when received, and (ii) if transmitted by email or facsimile, when sent, receipt confirmed by telephone or electronic means.
Section 9. NO WAIVER; REMEDIES.
No failure on the part of any party hereto or beneficiary hereof to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 10. NONPETITION.
Notwithstanding any prior termination of this Performance Guaranty, the Performance Guarantor shall not, prior to the date that is one year and one day after the Series 2017-VFN Note Purchase Agreement is no longer in effect, acquiesce, petition or otherwise invoke or cause the Transferor to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Transferor under any federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official of the Transferor or any substantial portion of their property, or ordering the winding up or liquidation of the affairs of the Transferor.
Section 11. TERMINATION.
The obligations of the Performance Guarantor hereunder for the benefit of any Guaranteed Party shall terminate upon the payment in full of the payment obligations owed to such Guaranteed Party under the Series 2017-VFN Note Purchase Agreement, and this Performance Guaranty shall terminate in whole upon the repayment in full of the payment obligations for all Guaranteed Parties under the Series 2017-VFN Note Purchase Agreement.
Section 12. THIRD PARTY BENEFICIARIES.
The Performance Guarantor hereby acknowledges and agrees that each of the Guaranteed Parties is an express third party beneficiary of this Performance Guaranty and each of the Guaranteed Parties is entitled to enforce the provisions hereof.
Section 13. FURTHER ASSURANCES.
The Performance Guarantor agrees that it will, promptly following request therefor, furnish to the Guaranteed Parties (and their respective assigns), such information regarding the operations, business affairs and financial condition of the Performance Guarantor, or compliance with this Performance Guaranty, as the Guaranteed Parties (and their respective assigns) may reasonably request. The Performance Guarantor also agrees to do all such things and execute all such documents as the Guaranteed Parties (and their respective assigns) may reasonably consider necessary or desirable to give full effect to this Performance Guaranty and to perfect and preserve the rights and powers of the Guaranteed Parties (and their respective assigns) hereunder.
Section 14. SUCCESSORS AND ASSIGNS.
This Performance Guaranty shall be binding upon the Performance Guarantor, its successors and permitted assigns, and shall inure to the benefit of and be enforceable by the Guaranteed Parties and their respective successors and permitted assigns.
Section 15. GOVERNING LAW; JURISDICTION.
THIS PERFORMANCE GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS PERFORMANCE GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND DELIVERY OF THIS PERFORMANCE GUARANTY, EACH PARTY HERETO HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
Section 16. CONSENT TO JURISDICTION.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS PERFORMANCE GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FEDERAL COURT SITTING IN THE
SOUTHERN DISTRICT OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS PERFORMANCE GUARANTY, THE PERFORMANCE GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE PERFORMANCE GUARANTOR IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS PERFORMANCE GUARANTY OR ANY DOCUMENT RELATED HERETO. THE PERFORMANCE GUARANTOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Section 17. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS PERFORMANCE GUARANTY OR THE ACTIONS OF THE GUARANTEED PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 18. COUNTERPARTS.
This Performance Guaranty may be executed by the parties in separate counterparts, each of which when so executed and delivered shall be an original but all such counterparts shall together constitute but one and the same instrument.
[Signature pages follow]
IN WITNESS WHEREOF, the Performance Guarantor has caused this Performance Guaranty and Parent Undertaking Agreement to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
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UNITED STATES CELLULAR CORPORATION, | |
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By: |
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John M. Toomey |
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Title: |
Authorized Person and Vice President and Assistant Treasurer of Telephone and Data Systems, Inc. |
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By: |
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Name: |
Steven T. Campbell |
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Title: |
Executive Vice President Finance, Chief Financial Officer and Treasurer |
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Notice Address: | |
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United States Cellular Corporation | |
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30 N. LaSalle, Suite 4000 | |
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Chicago, IL 60602 | |
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Attention: John M. Toomey | |
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Telephone 312-592-5308 | |
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Facsimile: 608-830-5530 | |
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Email: John.Toomey@tdsinc.com | |
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With copies to (which shall not constitute notice): | |
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United States Cellular Corporation | |
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8410 West Bryn Mawr Avenue | |
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Chicago, IL 60631 | |
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Attention: Steven T. Campbell | |
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Telephone: 773-399-4850 | |
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Facsimile: 773-399-8959 | |
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Email: steve.campbell@uscellular.com | |
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Sidley Austin LLP | |
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One S. Dearborn Street | |
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Chicago, IL 60603 | |
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Attention: Stephen P. Fitzell, General Counsel | |
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Telephone: 312-853-7379 | |
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Facsimile: 312-853-7036 | |
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Email: sfitzell@sidley.com |
[Signature Page to Performance Guaranty and Parent Undertaking Agreement]
Accepted as of the date hereof: |
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ROYAL BANK OF CANADA, |
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as Administrative Agent |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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[Signature Page to Performance Guaranty and Parent Undertaking Agreement]
USCC MASTER NOTE TRUST
AMENDED AND RESTATED TRUST AGREEMENT
by and between
USCC RECEIVABLES FUNDING LLC,
as Transferor,
and
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Owner Trustee
Dated as of December 20, 2017
TABLE OF CONTENTS
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ARTICLE I |
DEFINITIONS |
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Section 1.01 |
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Specific Defined Terms |
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Section 1.02 |
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Defined Terms Generally |
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Section 1.03 |
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Usage of Terms |
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Section 1.04 |
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Section References |
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ARTICLE II |
ORGANIZATION AND ESTABLISHMENT OF TRUST |
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Section 2.01 |
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Establishment of Trust: Name |
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Section 2.02 |
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Office |
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Section 2.03 |
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Purposes and Powers |
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Section 2.04 |
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Appointment of Owner Trustee |
6 | |
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Section 2.05 |
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Initial Capital Contribution of Trust Assets; Organizational Expenses |
7 | |
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Section 2.06 |
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Declaration of Trust |
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Section 2.07 |
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No Liability of Equity Certificateholder |
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Section 2.08 |
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Title to Trust Property |
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Section 2.09 |
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Situs of Trust |
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Section 2.10 |
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Representations and Warranties of the Transferor |
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Section 2.11 |
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Federal Income Tax Treatment |
9 | |
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Section 2.12 |
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Covenants and Restrictions on Conduct of Business |
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Section 2.13 |
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Effect of Agreement |
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ARTICLE III |
EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN |
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Section 3.01 |
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Ownership Interest; Prohibitions on Transfer |
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Section 3.02 |
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The Equity Certificate |
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Section 3.03 |
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Authentication and Delivery of Equity Certificate |
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Section 3.04 |
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Registration of Transfer and Exchange of the Equity Certificate |
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Section 3.05 |
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Mutilated, Destroyed, Lost or Stolen Trust Equity Certificate |
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Section 3.06 |
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Persons Deemed Equity Certificateholders |
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Section 3.07 |
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Access to Equity Certificateholders Name and Addresses |
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Section 3.08 |
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Maintenance of Office or Agency |
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Section 3.09 |
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Ownership by the Transferor of Equity Certificate |
14 | |
TABLE OF CONTENTS
(continued)
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ARTICLE IV |
ACTIONS BY OWNER TRUSTEE |
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Section 4.01 |
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Prior Notice to Equity Certificateholder with Respect to Certain Matters |
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Section 4.02 |
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Action by Equity Certificateholder with Respect to Certain Matters |
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Section 4.03 |
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Action by Equity Certificateholder and the Transferor with Respect to Bankruptcy |
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Section 4.04 |
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Restrictions on Owner Trustees Power |
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ARTICLE V |
APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES |
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Section 5.01 |
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Taxes |
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Section 5.02 |
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Method of Payment |
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Section 5.03 |
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No Segregation of Moneys; No Interest |
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Section 5.04 |
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Accounting and Reports to the Equity Certificateholder, the Internal Revenue Service and Others |
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Section 5.05 |
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Signature on Returns; Tax Matters Partner |
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Section 5.06 |
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Fiscal Year |
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Section 5.07 |
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Tax Returns |
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ARTICLE VI |
AUTHORITY AND DUTIES OF OWNER TRUSTEE |
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Section 6.01 |
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General Authority |
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Section 6.02 |
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General Duties |
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Section 6.03 |
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Action Upon Instruction |
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Section 6.04 |
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No Duties Except as Specified in This Agreement or in Instructions |
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Section 6.05 |
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No Action Except Under Specified Documents or Instructions |
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Section 6.06 |
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Restrictions |
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Section 6.07 |
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Certain Litigation Matters |
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ARTICLE VII |
CONCERNING THE OWNER TRUSTEE |
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Section 7.01 |
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Acceptance of Trust and Duties |
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Section 7.02 |
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Furnishing of Documents |
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Section 7.03 |
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Representations and Warranties of the Owner Trustee |
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Section 7.04 |
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Reliance; Advice of Counsel |
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Section 7.05 |
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Not Acting in Individual Capacity |
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TABLE OF CONTENTS
(continued)
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Section 7.06 |
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Owner Trustee Not Liable for Notes, Equity Certificate or Receivables |
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Section 7.07 |
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Owner Trustee May Own Notes |
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ARTICLE VIII |
COMPENSATION OF OWNER TRUSTEE |
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Section 8.01 |
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Owner Trustees Fees and Expenses |
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Section 8.02 |
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Indemnification |
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Section 8.03 |
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Non-recourse Obligations |
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Section 8.04 |
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Payments to the Owner Trustee |
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ARTICLE IX |
TERMINATION OF TRUST |
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Section 9.01 |
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Termination of Trust |
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ARTICLE X |
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES |
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Section 10.01 |
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Eligibility Requirements for Owner Trustee |
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Section 10.02 |
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Resignation or Removal of Owner Trustee |
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Section 10.03 |
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Successor Owner Trustee |
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Section 10.04 |
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Merger or Consolidation of Owner Trustee |
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Section 10.05 |
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Appointment of Co-Trustee or Separate Trustee |
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ARTICLE XI |
MISCELLANEOUS |
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Section 11.01 |
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Supplements and Amendments |
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Section 11.02 |
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Limitations on Rights of Others |
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Section 11.03 |
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Notices |
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Section 11.04 |
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Severability of Provisions |
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Section 11.05 |
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Counterparts |
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Section 11.06 |
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Successors and Assigns |
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Section 11.07 |
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No Petition |
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Section 11.08 |
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No Recourse |
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Section 11.09 |
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Headings |
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Section 11.10 |
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GOVERNING LAW |
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Section 11.11 |
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JURISDICTION |
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Section 11.12 |
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WAIVER OF JURY TRIAL |
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Section 11.13 |
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No Legal Title to Trust Assets in the Equity Certificateholder |
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TABLE OF CONTENTS
(continued)
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Section 11.14 |
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No Waivers; Remedies |
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Section 11.15 |
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Entire Agreement |
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EXHIBITS
Exhibit A Section 3.01 Certificate
Exhibit B Form of Equity Certificate
This AMENDED AND RESTATED TRUST AGREEMENT (as amended, supplemented or otherwise modified from time to time, this Agreement) dated as of December 20, 2017 is made by and between USCC RECEIVABLES FUNDING LLC, a Delaware limited liability company, as transferor (the Transferor) and Wilmington Trust, National Association, a national banking association, not in its individual capacity, but solely as owner trustee (together with its successors and permitted assigns, the Owner Trustee).
WHEREAS, USCC Master Note Trust is a Delaware statutory trust (the Trust) created pursuant to a Trust Agreement dated as of October 24, 2017 (the Original Trust Agreement), by and between the Transferor and the Owner Trustee;
WHEREAS, the parties hereto wish to amend and restate the Original Trust Agreement in its entirety for the purpose of taking assignments and conveyances of, and holding in trust and dealing in, the Trust Assets (as defined herein);
WHEREAS, in connection herewith the Transferor is willing to purchase the Equity Certificate (as defined herein) to be issued pursuant to this Agreement and to assume certain obligations pursuant hereto; and
WHEREAS, in connection herewith the Owner Trustee is willing to assume certain obligations pursuant hereto.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties hereto, intending to be legally bound hereby, agree that the Original Trust Agreement shall be amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Specific Defined Terms. Unless otherwise specifically defined in this Agreement, capitalized terms used herein (including in the preamble above) shall have the meanings assigned to them in Annex A to the Indenture.
Administrator shall mean USCC Services, LLC, in its capacity as administrator, or any successor Administrator under the Administration Agreement.
Agreement means this Amended and Restated Trust Agreement, as the same may be amended, supplemented or restated from time to time.
Benefit Plan shall mean any one of (a) an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (b) a plan as defined in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code, (c) any entity whose underlying assets include plan assets by reason of such employee benefit plans or plans investment in such entity or (d) any governmental, church, non-U.S. or other plan subject to any federal, state, local or non-U.S. law that is substantially similar to Title I of ERISA or Section 4975 of the Code.
Business Day shall have the meaning assigned to such term in Annex A to the Indenture.
Certificate of Trust means the Certificate of Trust filed for the Trust with the Secretary of State of the State of Delaware on October 24, 2017.
Certificate Register and Certificate Registrar mean the register maintained and the registrar (or any successor thereto) appointed pursuant to Section 3.04.
Code means the Internal Revenue Code of 1986, as amended.
Collateral shall have the meaning assigned to such term in Annex A to the Indenture.
Corporate Trust Office means the corporate trust office of the Owner Trustee in the State of Delaware, which office initially shall be located at 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Capital Markets, or such other office at such other address in the State of Delaware as the Owner Trustee may designate from time to time by written notice to the Equity Certificateholder, the Servicer, the Indenture Trustee, and the Transferor.
Delaware Statutory Trust Act means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq., as the same maybe amended from time to time.
Equity Certificate means the trust certificate evidencing the beneficial interest of the Equity Certificateholder in the Trust Assets, substantially in the form of Exhibit B hereto.
Equity Certificateholder means the Person in whose name the Equity Certificate is registered in the Certificate Register.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Expenses shall have the meaning assigned to such term in Section 8.02.
Foreign Person means any Person other than (i) a citizen or resident of the United States, (ii) a corporation or partnership (including any entity treated as a partnership or corporation for U.S. federal income tax purposes) organized in or under the laws of the United States or any state thereof or the District of Columbia, (iii) an estate, the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) a trust whose administration is subject to the primary supervision of a court within the United States and which has one or more U.S. persons who have authority to control all substantial decisions of the Trust and certain eligible trusts that have elected to be treated as a U.S. person under Code Section 7701(a)(30).
Governmental Authority means any federal, state, municipal, national, local or other governmental department, court, commission, board, bureau, agency, intermediary, carrier or instrumentality or political subdivision thereof, or any entity or officer exercising executive,
legislative, judicial, quasi-judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case, whether of the United States or a state, territory or possession thereof, a foreign sovereign entity or country or jurisdiction or the District of Columbia.
Holder means a Noteholder or the Equity Certificateholder, as applicable.
Indemnified Parties shall have the meaning assigned to such term in Section 8.02.
Indenture means the Master Indenture, dated as of December 20, 2017, by and among U.S. Bank National Association, as Indenture Trustee, USCC Services, as the servicer, and the Trust, as issuer, as the same may be amended, supplemented or restated from time to time.
Initial Closing Date shall have the meaning assigned to such term in Annex A to the Indenture.
Noteholder shall have the meaning assigned to such term in Annex A to the Indenture.
Notes shall have the meaning assigned to such term in Annex A to the Indenture.
Owner Trustee means Wilmington Trust, National Association, not in its individual capacity but solely as owner trustee under this Agreement, and any successor Owner Trustee hereunder.
Paying Agent shall have the meaning assigned to such term in Annex A to the Indenture.
Person means any individual, corporation, estate, partnership, joint venture, association, limited liability company, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof.
Related Documents has the meaning assigned to such term in Section 7.03(b).
Secretary of State means the Secretary of State of the State of Delaware.
Solvent means, as to any Person at any time, that (a) the fair value of the property of such Person is greater than the amount of such Persons liabilities (including disputed, contingent and unliquidated liabilities) as such value is established or such liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair saleable value of the property of such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they
mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Persons ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in a business or a transaction, for which such Persons property would constitute unreasonably small capital.
Transaction Documents shall have the meaning assigned to such term in Annex A to the Indenture.
Transfer and Servicing Agreement means the Transfer and Servicing Agreement, dated as of December 20, 2017, by and among the Trust, the Transferor, and USCC Services, as Servicer and Custodian thereunder, as the same may be amended, supplemented or restated from time to time.
Transferor means USCC Receivables Funding LLC, in its capacity as Transferor hereunder and as set forth in the Transfer and Servicing Agreement, and its successors and assigns.
Treasury Regulations means regulations, including proposed or temporary regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.
Trust means the trust continued and governed by this Agreement, the estate of which consists of the Trust Assets.
Trust Assets means all right, title and interest of the Trust in and to the property, proceeds and rights assigned to the Trust pursuant to Article II of the Transfer and Servicing Agreement, all funds on deposit from time to time in the Trust Accounts (including all investments therein and proceeds and income therefrom), and all other property of the Trust from time to time, including any rights of the Owner Trustee (except for any rights of the Owner Trustee in its individual capacity) and the Trust pursuant to the Transfer and Servicing Agreement, but not including any of such property which has been released and reconveyed from the Trust in accordance with and pursuant to the Transfer and Servicing Agreement.
USCC Services shall mean USCC Services, LLC, a Delaware limited liability company.
Section 1.02 Defined Terms Generally. Capitalized terms used that are not otherwise specifically defined herein shall have the same meaning given to such terms in Annex A to the Indenture (as defined in Section 1.01 above).
Section 1.03 Usage of Terms. With respect to all terms in this Agreement, the singular includes the plural and the plural the singular; words importing one gender include each other gender; references to writing include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all amendments, modifications and supplements thereto or any changes therein entered into in accordance with their respective terms and not prohibited by this Agreement; references
to Persons include their permitted successors and assigns; and the term including means including without limitation.
Section 1.04 Section References. All section references, unless otherwise indicated, shall be to Sections in this Agreement.
ARTICLE II
ORGANIZATION AND ESTABLISHMENT OF TRUST
Section 2.01 Establishment of Trust: Name. The Delaware statutory trust created pursuant to the Original Trust Agreement and continued hereby, in each case, in accordance with the provisions of the Delaware Statutory Trust Act, is known as USCC Master Note Trust, in which name the Owner Trustee and, to the extent expressly set forth herein, the Transferor and the Administrator shall have the power and authority and each is hereby authorized and empowered to and may conduct the activities of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued on behalf of the Trust.
Section 2.02 Office. The office of the Trust shall be in care of the Owner Trustee at the Corporate Trust Office or at such address in the State of Delaware as the Owner Trustee may designate by notice to the Equity Certificateholder, the Servicer, the Indenture Trustee and the Transferor. The general administrative office of the Trust is in the care of the Owner Trustee at its Corporate Trust Office or at such other address as the Owner Trustee may designate by written notice to the Equity Certificateholder, the Servicer, the Indenture Trustee and the Transferor.
Section 2.03 Purposes and Powers.
(a) The purpose of the Trust is, and the Trust shall have the power and authority, and is hereby authorized and empowered, to engage, from time to time, solely in a program of acquiring Receivables, the Related Rights and the other Trust Assets pursuant to the Transfer and Servicing Agreement and issuing Notes under the Indenture and related activities. Without limiting the generality of the foregoing, the Trust shall have the power and authority, and is hereby authorized and empowered, to engage in the following activities:
(i) to issue and sell the Notes pursuant to the Indenture and the Equity Certificate pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes and the Equity Certificate, to purchase the Receivables, Related Rights and other Trust Assets and to otherwise acquire, hold, sell or dispose of the Receivables;
(iii) to pay organizational, start-up and transactional expenses of the Trust (to the extent not paid by the Transferor or the Administrator);
(iv) from time to time, to receive payments and proceeds with respect to the Trust Assets and either invest or distribute those payments and proceeds;
(v) from time to time, to make deposits and withdrawals from Trust Accounts established under the Indenture;
(vi) from time to time, to grant a security interest in, grant, transfer, pledge and mortgage the Collateral pursuant to the Indenture and to acquire, hold, manage, distribute, dispose of, release or convey, to the Transferor and the Noteholders or at the direction of the Equity Certificateholder pursuant to the Indenture or the Transfer and Servicing Agreement, any portion of the Trust Assets released from the lien of, and remitted to the Trust pursuant to, the Indenture or the Transfer and Servicing Agreement;
(vii) from time to time, to make payments on the Notes;
(viii) to enter into, execute, deliver and perform its obligations under the Transaction Documents to which it is or becomes a party;
(ix) to engage in those activities, including entering into, executing, delivering, and performing agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith; and
(x) subject to compliance with the Transaction Documents, to engage in such other activities as may be required in connection with conservation of the Trust Assets and the making of distributions to the Equity Certificateholder and the Noteholders.
(b) In connection with any of the foregoing, the Trust may (x) execute and deliver, and/or accept such instruments, agreements, certificates, Uniform Commercial Code financing statements and other documents, and create such security interests, as may be necessary or desirable in connection therewith, and (y) subject to the terms of this Agreement, take such other action as may be necessary or incidental to the foregoing. In furtherance of the foregoing, each of the Transferor and the Administrator is authorized, on behalf of the Trust, to execute and deliver any agreements, documents, instruments and securities or to take other actions on behalf of the Trust in connection with the fulfillment of the purposes of the Trust described in, and pursuant to Section 2.03(a).
(c) The Owner Trustee shall have the power and authority and is hereby authorized and empowered, as Owner Trustee and in the name and on behalf of the Trust, to do or cause to be done all acts and things as may be necessary or convenient to cause the Trust to engage in the foregoing activities. The Trust shall not engage in any activities other than in connection with the foregoing. Nothing contained herein shall be deemed to authorize the Trust to engage in any business operations or any activities other than those set forth in this Section 2.03. Specifically, the Trust shall have no authority to engage in any business operations, or acquire any assets other than those specifically included in the Trust Assets, or otherwise vary the assets held by the Trust.
Section 2.04 Appointment of Owner Trustee. The Transferor hereby appoints the Owner Trustee as trustee of the Trust, effective as of the date hereof, to have all of the rights,
powers and authority set forth herein and in the Delaware Statutory Trust Act, and the Owner Trustee hereby accepts such appointment.
Section 2.05 Initial Capital Contribution of Trust Assets; Organizational Expenses. The Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as of the date hereof, the sum of $250,000.00. The Owner Trustee hereby acknowledges receipt in trust from the Transferor, as of the date hereof, of the foregoing contribution, which constitutes the initial Trust Assets and shall be deposited by the Transferor into the Excess Funding Account (and which funds may be used as provided in the Transaction Documents). The Transferor shall pay or provide for the payment of organizational expenses of the Trust as they may arise or shall, upon the request of the Owner Trustee, promptly reimburse or provide for the reimbursement of the Owner Trustee for any such expenses paid by the Owner Trustee on behalf of the Trust.
Section 2.06 Declaration of Trust. The Owner Trustee hereby declares that it will hold the Trust Assets in trust upon and subject to the conditions set forth herein for the sole purpose of conserving the Trust Assets and collecting and disbursing (or causing the collection and disbursement of) the periodic income therefrom for the use and benefit of the Equity Certificateholder, subject to the obligations of the Trust under the Transaction Documents. It is the intention of the parties hereto that for federal, state and local income and franchise tax purposes, the Trust and its assets shall be disregarded as an entity and not treated as an association or a publicly traded partnership taxable as a corporation. It is the intention of the parties hereto that (i) the Trust constitute a statutory trust under the Delaware Statutory Trust Act, (ii) this Agreement constitutes the governing instrument of such statutory trust and (iii) the Equity Certificate represents the beneficial interests therein. Effective as of the date hereof, the Owner Trustee shall have all rights, powers and authority set forth herein and in the Delaware Statutory Trust Act for the sole purpose and to the extent necessary to accomplish the purposes of the Trust as set forth in Section 2.03.
Section 2.07 No Liability of Equity Certificateholder. No Equity Certificateholder (in such capacity) shall have any personal liability for any liability or obligation of the Trust or by reason of any action taken by the parties to this Agreement pursuant to any provisions of this Agreement or any other Transaction Document.
Section 2.08 Title to Trust Property. Title to all of the Trust Assets will be vested in the Trust as a separate legal entity until this Agreement terminates pursuant to Article IX; provided, however, that if the laws of any jurisdiction requires that title to any part of the Trust Assets be vested in the trustees of a trust, then title to that part of the Trust Assets will be deemed to be vested in the Owner Trustee (subject to the Owner Trustees prior written consent), or any co-owner trustee or separate owner trustee, as the case may be, appointed pursuant to Article X.
Section 2.09 Situs of Trust. The Trust will be administered in the State of Delaware or the State of New York. The Trust shall not have any employees in any state other than Delaware; provided, however, that nothing herein shall restrict or prohibit the Owner Trustee, the Servicer, the Transferor or any agent of the Trust from having employees within or without the State of Delaware or taking actions outside the State of Delaware. Payments will be
received by the Trust only in the State of Delaware or the State of New York and payments will be made by the Trust only from the State of Delaware or the State of New York. The only office of the Trust will be at the Corporate Trust Office.
Section 2.10 Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Owner Trustee as of the date of this Agreement and as of each Addition Date that:
(i) The Transferor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with the power and authority to own its assets and to transact the business in which it is currently engaged.
(ii) The Transferor is duly qualified to do business and is in good standing under the laws of any jurisdiction in which the character of the business transacted by it or properties owned or leased by it requires such qualification and in which the failure so to qualify could reasonably be expected to have a material adverse effect on the business, properties, assets, or condition (financial or otherwise) of the Transferor or the Transferors ability to perform its duties hereunder.
(iii) The Transferor has the power and authority to make, execute, deliver and perform this Agreement and the other Transaction Documents to which the Transferor is a party and all of the transactions contemplated under this Agreement and the other Transaction Documents to which the Transferor is a party, and has taken all necessary limited liability company action to authorize the execution, delivery and performance of this Agreement and the other Transaction Documents to which the Transferor is a party.
(iv) This Agreement and the other Transaction Documents to which the Transferor is a party have been duly executed and delivered by the Transferor and constitute the legal, valid and binding obligation of the Transferor, enforceable in accordance with their terms, except as enforcement of such terms may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally, any applicable law imposing limitations upon, or otherwise affecting, the availability or enforcement of rights to indemnification hereunder, and by the availability of equitable remedies.
(v) The Transferors execution, delivery and performance of this Agreement and any other Transaction Documents to which it is a party will not violate any provision of any existing law or regulation or any order or decree of any court or the certificate of formation or limited liability company agreement of the Transferor, or constitute a material breach of any mortgage, indenture, contract or other agreement to which the Transferor is a party or by which it or any of its properties may be bound.
(vi) All authorizations, consents, orders, licenses or approvals of or registrations with any Governmental Authority required to be obtained, effected or given by the Transferor in connection with the execution, and delivery, by the Transferor of this Agreement and the performance of the transactions contemplated by this Agreement and any other Transaction Documents to which the Transferor is a party have been duly obtained, effected or given and are in full force and effect.
(vii) There are no proceedings or investigations pending, or to the Transferors knowledge threatened, before any Governmental Authority having jurisdiction over the Transferor or its properties: (A) asserting the invalidity of this Agreement or any of the other Transaction Documents, (B) seeking to prevent the issuance of the Equity Certificate or the consummation of any of the transactions contemplated by this Agreement or any other Transaction Documents, (C) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, or the validity or enforceability of, this Agreement, the Equity Certificate or any other Transaction Document, or (D) involving the Transferor and which might adversely affect the federal income tax or other federal, state or local tax attributes of the Equity Certificate.
Section 2.11 Federal Income Tax Treatment. It is the intention of the Transferor and its sole member that the Trust be disregarded as a separate entity for U.S. federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3(b)(l)(ii) as in effect for periods after January 1, 1997. The Equity Certificate constitutes the sole equity interest in the Trust and to the fullest extent permitted by applicable law must at all times be held by either the Transferor or its transferee as the sole Equity Certificateholder. Because for U.S. federal income tax purposes the Trust will be disregarded as a separate entity, Trust items of income, gain, loss and deduction for any month as determined for U.S. federal income tax purposes shall be allocated entirely to the Equity Certificateholder.
Section 2.12 Covenants and Restrictions on Conduct of Business. (a) The Trust covenants and agrees to abide by the following restrictions:
(i) other than as contemplated by the Transaction Documents and related documentation, the Trust shall not incur any indebtedness;
(ii) other than as contemplated by the Transaction Documents and related documentation, the Trust shall not engage in any dissolution, liquidation, consolidation, merger or sale of assets;
(iii) the Trust shall not engage in any business activity in which it is not currently engaged other than as contemplated by the Transaction Documents and related documentation; and
(iv) the Trust shall not form, or cause to be formed, any subsidiaries and shall not own or acquire any asset other than as contemplated by the Transaction Documents and related documentation.
(b) The Trust covenants and agrees to:
(i) maintain books and records separate from any other person or entity;
(ii) maintain its office and bank accounts separate from any other person or entity;
(iii) not commingle its assets with those of any other person or entity;
(iv) conduct its own business in its own name and use stationery or other business forms under its own name and not that of any Equity Certificateholder or any Affiliate;
(v) other than as contemplated by Section 8.01, the Transaction Documents and related documentation, pay its own liabilities and expenses only out of its own funds;
(vi) observe all formalities required under the Delaware Statutory Trust Act;
(vii) not guarantee or become obligated for the debts of any other person or entity;
(viii) not hold out its credit as being available to satisfy the obligation of any other person or entity;
(ix) not acquire the obligations or securities of its Equity Certificateholders or its Affiliates;
(x) other than as contemplated by the Transaction Documents and related documentation, not make loans to any other person or entity or buy or hold evidence of indebtedness issued by any other person or entity;
(xi) other than as contemplated by the Transaction Documents and related documentation, not pledge its assets for the benefit of any other person or entity;
(xii) hold itself out as a separate entity from each Equity Certificateholder and not conduct any business in the name of any Equity Certificateholder;
(xiii) correct any known misunderstanding regarding its separate identity;
(xiv) not identify itself as a division of any other person or entity; and
(xv) except as required or specifically provided in this Agreement, the Trust will conduct business with the Equity Certificateholders or any Affiliate thereof on an arms-length basis.
Section 2.13 Effect of Agreement. As of the date hereof, the Original Trust Agreement is hereby amended and restated in its entirety.
ARTICLE III
EQUITY CERTIFICATE AND TRANSFERS OF INTERESTS THEREIN
Section 3.01 Ownership Interest; Prohibitions on Transfer.
(a) Upon the formation of the Trust and until the issuance of the Equity Certificate, the Transferor shall be the sole beneficial owner of the Trust.
(b) No transfer of the Equity Certificate (other than a transfer to the Transferor) shall be made unless such transfer is made in a transaction which does not require registration or qualification under the Securities Act or qualification under any state securities or Blue Sky laws. Neither the Owner Trustee nor the Certificate Registrar shall effect the registration of any transfer of the Equity Certificate (other than a transfer to the Transferor) unless, prior to such transfer the Owner Trustee and the Certificate Registrar shall have received a certificate from the proposed transferee substantially in the form of Exhibit A hereto, certifying that (i) following such transfer, there would be no more than one holder of the Equity Certificate and the holder of the Equity Certificate would not be a Foreign Person or a disregarded entity, a partnership, subchapter S corporation or grantor trust for U.S. federal income tax purposes, (ii) such transfer complies with and does not violate any state securities laws, any Blue Sky laws or the Securities Act and (iii) such transferee is not acquiring such Equity Certificate for, or with the assets of, a Plan; provided, however, that the Transferor hereby certifies that it satisfies the requirements of the preceding clause (b)(i).
(c) To the fullest extent permitted by applicable law, no interest in the Equity Certificate may be sold, conveyed, assigned, hypothecated, rehypothecated, pledged, participated, exchanged, made the subject of a transfer except as provided herein and subject to the prior delivery to the Owner Trustee of a Tax Opinion (as defined in the Indenture) with respect to such transaction.
Section 3.02 The Equity Certificate. On the Initial Closing Date, the Equity Certificate shall be issued to the Transferor, substantially in the form of Exhibit B hereto. The Equity Certificate shall be executed by the Owner Trustee on behalf of the Trust by manual or facsimile signature of an authorized officer of the Owner Trustee, authenticated pursuant to Section 3.03 and delivered to or at the written direction of the Transferor, and, when so executed,
authenticated and delivered, shall be deemed to have been validly issued and shall be entitled to the benefits of this Agreement. The Equity Certificate bearing the manual or facsimile signature of individuals who were, at the time when such signatures were affixed, authorized to sign on behalf of the Owner Trustee shall be a valid and binding obligation of the Trust, notwithstanding that such individuals or any of them have ceased to be so authorized prior to the authentication and delivery of such Equity Certificate or did not hold such offices at the date of the authentication and delivery of the Equity Certificate. The Equity Certificate shall be dated the date of its authentication.
Section 3.03 Authentication and Delivery of Equity Certificate. The Equity Certificate shall not entitle its holder to any benefit under this Agreement, or be valid for any purpose, unless there shall appear on such Equity Certificate a certificate of authentication substantially in the form set forth in Exhibit B executed by the Owner Trustee, by manual signature; such authentication shall constitute conclusive evidence that the Equity Certificate shall have been duly and validly authorized, issued, authenticated and delivered hereunder.
Section 3.04 Registration of Transfer and Exchange of the Equity Certificate.
(a) The Certificate Registrar shall maintain or cause to be maintained, at the office or agency maintained pursuant to Section 3.08, a Certificate Register in which, subject to such reasonable regulations as it may prescribe, it shall provide for the registration of the Equity Certificate and of transfers and exchanges of the Equity Certificate as provided in this Agreement. The Owner Trustee is hereby initially appointed Certificate Registrar for the purpose of registering the Equity Certificate and transfers and exchanges of the Equity Certificate as provided in this Agreement. In the event that the Owner Trustee notifies the Transferor that it is unable to act as Certificate Registrar, the Transferor shall appoint another bank or trust company agreeing to act in accordance with the provisions of this Agreement applicable to it, and otherwise acceptable to the Owner Trustee, to act as successor Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of the Equity Certificate otherwise permitted to be transferred in accordance herein at the office or agency maintained pursuant to Section 3.08, the Owner Trustee shall (subject to Section 3.01(b)) execute, authenticate and deliver (or shall cause its authenticating agent to authenticate and deliver) pursuant to Sections 3.02 and 3.03, in the name of the designated transferee, a new Equity Certificate, dated the date of authentication by the Owner Trustee or any authenticating agent.
(c) An Equity Certificate presented or surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form reasonably satisfactory to the Certificate Registrar duly executed by the Holder thereof or his attorney duly authorized in writing. The Certificate Registrar shall notify the Owner Trustee in writing when the Equity Certificate is presented or surrendered for registration of transfer, that the Equity Certificate has been cancelled and the identity of the designated transferee. The Owner Trustee may conclusively rely on such written notification in executing on behalf of the Trust, authenticating and delivering the new Equity Certificate and shall not be liable to any person in connection with such reliance.
(d) No service charge shall be made for any registration of transfer or exchange of the Equity Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer of the Equity Certificate.
(e) All Equity Certificates surrendered for registration of transfer or exchange shall be canceled and subsequently destroyed by the Certificate Registrar in accordance with its customary practice, unless the Trust directs that they be returned to it provided that such direction is timely and such Equity Certificates have not been previously destroyed by the Certificate Registrar.
(f) The Certificate Registrar shall promptly, and in any event within five (5) Business Days, notify the Indenture Trustee in writing of any transfer of the Equity Certificate.
Section 3.05 Mutilated, Destroyed, Lost or Stolen Trust Equity Certificate. If (a) any mutilated Equity Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Equity Certificate, and (b) in the case of any destroyed, lost, or stolen Equity Certificate, there is delivered to the Certificate Registrar and the Owner Trustee (as such and in its individual capacity) such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Owner Trustee and the Certificate Registrar that such Equity Certificate has been acquired by a bona fide or protected purchaser, the Owner Trustee on behalf of the Trust shall execute in accordance with Section 3.02 and the Owner Trustee or its authenticating agent shall authenticate and deliver in accordance with Section 3.03, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Equity Certificate, a new Equity Certificate of like tenor. In connection with the issuance of any new Equity Certificate under this Section 3.05, the Owner Trustee or the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith and any other reasonable expenses (including the reasonable fees and expenses of the Owner Trustee and the Certificate Registrar and their respective counsels) connected therewith. Any replacement Equity Certificate issued pursuant to this Section 3.05 shall constitute conclusive evidence of beneficial ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Equity Certificate shall be found at any time.
Section 3.06 Persons Deemed Equity Certificateholders. Prior to due presentation of an Equity Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar and any of their respective agents may treat the Person in whose name the Equity Certificate is registered in the Certificate Register as the owner of the Equity Certificate for the purpose of receiving distributions thereon and for all other purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar or any of their respective agents shall be affected by any notice of the contrary.
Section 3.07 Access to Equity Certificateholders Name and Addresses. The Certificate Registrar shall furnish or cause to be furnished to the Owner Trustee, the Servicer, the Indenture Trustee and the Transferor within fifteen (15) days after receipt by the Certificate Registrar of a written request therefor from the Servicer, the Owner Trustee, the Indenture
Trustee or the Transferor, the name and address of the Equity Certificateholder as of the most recent Record Date in such form as the Servicer, the Owner Trustee, the Indenture Trustee or the Transferor may reasonably require. The Equity Certificateholder, by receiving and holding the Equity Certificate, agrees that none of the Servicer, the Transferor, Certificate Registrar nor the Owner Trustee, nor any agent thereof, shall be held accountable by reason of the disclosure of any such information as to the name and address of the Equity Certificateholder hereunder, regardless of the source from which such information was derived.
Section 3.08 Maintenance of Office or Agency. The Certificate Registrar shall maintain an office or offices or agency or agencies where an Equity Certificate may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Trust or the Certificate Registrar in respect of the Equity Certificate and any Transaction Documents may be served. The Certificate Registrar initially designates the Corporate Trust Office as its office for such purposes. The Certificate Registrar shall give prompt written notice to the Owner Trustee, the Transferor, the Servicer, and the Equity Certificateholder of any change in the location of the Certificate Register or any such office or agency.
Section 3.09 Ownership by the Transferor of Equity Certificate. The Transferor shall on the Initial Closing Date purchase from the Trust the Equity Certificate.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01 Prior Notice to Equity Certificateholder with Respect to Certain Matters. Subject to the provisions and limitations of Section 4.04, with respect to the following matters, the Owner Trustee (on behalf of the Trust) shall not take action unless at least thirty (30) days before the taking of such action, the Owner Trustee shall have notified the Equity Certificateholder in writing of the proposed action, the Indenture Trustee (acting at the written direction of the Requisite Global Majority) shall have consented to such action in the event any Notes are outstanding, and the Equity Certificateholder shall not have notified the Owner Trustee in writing prior to the 30th day after such notice is given that such Equity Certificateholder has withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits brought in connection with the collection of Trust Assets) and the compromise of any action, claim or lawsuit brought by or against the Trust (except with respect to the aforementioned claims or lawsuits for collection of Trust Assets);
(b) the amendment of the Indenture by a supplemental indenture if required in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture if required in circumstances where the consent of any Noteholder is not required and such amendment materially and adversely affects the interest of the Equity Certificateholder or the Transferor;
(d) the appointment pursuant to the Indenture of a successor Paying Agent or Indenture Trustee or pursuant to this Agreement of a successor Certificate Registrar, or the consent to the assignment by the Paying Agent, Indenture Trustee or Certificate Registrar of its obligations under the Indenture or this Agreement, as applicable.
Section 4.02 Action by Equity Certificateholder with Respect to Certain Matters. Subject to the provisions and limitations of Section 4.04, the Owner Trustee (on behalf of the Trust) shall not have the power, except upon the direction of the Equity Certificateholder, to (a) except as otherwise expressly provided in the relevant Transaction Documents, release or convey from the Trust any Trust Assets or (b) authorize the merger or consolidation of the Trust with or into any other statutory trust or entity (other than in accordance with applicable restrictions or conditions thereon contained in the relevant Transaction Document). Except to the extent otherwise provided in clause (b) above, the Owner Trustee (on behalf of the Trust) shall take the actions referred to in the preceding sentence upon (and only upon) written instructions signed by the Equity Certificateholder.
Section 4.03 Action by Equity Certificateholder and the Transferor with Respect to Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary proceeding in a bankruptcy relating to the Trust without the prior approval of the Equity Certificateholder and the Transferor and the delivery to the Owner Trustee by such Equity Certificateholder and the Transferor of a certificate certifying that such Equity Certificateholder and the Transferor reasonably believe that the Trust is no longer Solvent.
Section 4.04 Restrictions on Owner Trustees Power. Neither the Transferor nor the Equity Certificateholder shall direct the Owner Trustee to take or to refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Owner Trustee under this Agreement or any of the other Transaction Documents, or would be contrary to the purpose of this Trust as set forth in Section 2.03, nor shall the Owner Trustee be obligated to follow any such direction, if given or required, or to determine whether any such direction violates this Section 4.04.
ARTICLE V
APPLICATION AND DISTRIBUTION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01 Taxes. In the event that any withholding tax is imposed on the Trusts payment (or allocation of income) to the Equity Certificateholder, such tax shall reduce the amount otherwise distributable to the Equity Certificateholder in accordance with this Section 5.01. The Administrator is hereby authorized and directed to retain, from amounts otherwise distributable to the Equity Certificateholder, sufficient funds for the payment of any tax that is legally owed by the Equity Certificateholder of which the Administrator has actual knowledge (but such authorization shall not prevent the Equity Certificateholder from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The amount of any withholding tax imposed with respect to the Equity Certificateholder shall be treated as cash distributed to such Equity Certificateholder at the time it is withheld by the Trust and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to a distribution,
the Administrator may in its sole discretion withhold such amounts in accordance with this Section 5.01. In the event that the Equity Certificateholder wishes to apply for a refund of any such withholding tax, the Administrator shall reasonably cooperate with the Equity Certificateholder in making such claim so long as the Equity Certificateholder agrees to reimburse the Administrator for any reasonable out-of-pocket expenses incurred in connection therewith.
Section 5.02 Method of Payment. Distributions to be made to the Equity Certificateholder on any Payment Date shall be made to the Equity Certificateholder of record on the preceding Record Date by wire transfer, in immediately available funds, to the account of such Equity Certificateholder at a bank or other entity having appropriate facilities therefor, which the Equity Certificateholder shall have designated to the Certificate Registrar and Administrator, with appropriate written wire transfer instructions, at least three (3) Business Days prior to such Payment Date. In the absence of such designation, such distributions shall be made by check mailed to the Equity Certificateholder at the address of such Holder appearing in the Certificate Register.
Section 5.03 No Segregation of Moneys; No Interest. Moneys received by the Owner Trustee or the Trust hereunder need not be segregated in any manner except to the extent required by law or any Transaction Document, and may be deposited under such general conditions as may be prescribed by law, and the Owner Trustee (as such or in its individual capacity) shall not be liable for any interest thereon.
Section 5.04 Accounting and Reports to the Equity Certificateholder, the Internal Revenue Service and Others. The Servicer on behalf of the Trust shall (a) maintain (or cause to be maintained) the books of the Trust on a calendar year basis and the accrual method of accounting, (b) deliver or cause to be delivered to the Equity Certificateholder, as may be required by the Code and applicable Treasury Regulations, such information as may be required (including Form 1099 or Schedule K-1) to enable the Equity Certificateholder to prepare its federal and state income tax returns, (c) file or cause to be filed such tax returns relating to the Trust and make such elections as from time to time may be required or appropriate under any applicable state or federal statute or any rule or regulation thereunder so as to maintain the federal income tax treatment for the Trust as set forth in Section 2.11, (d) cause such tax returns to be signed in the manner required by law and (e) collect or cause to be collected any withholding tax as described in and in accordance with Section 5.01 with respect to income or distributions to the Equity Certificateholder. The Equity Certificateholder shall be entitled to make all available tax elections pursuant to the Code (and corresponding provisions of current state law) with respect to the Trust. Notwithstanding the previous sentence, the Equity Certificateholder may not make an election or the cause the Trust to make an election (or take other action) that would cause the Trust to be treated as an association taxable as a corporation for U.S. federal income tax purposes.
Section 5.05 Signature on Returns; Tax Matters Partner.
(a) The Equity Certificateholder shall sign on behalf of the Trust the tax returns of the Trust, if any.
(b) If Subchapter K of the Code should be applicable to the Trust, the Equity Certificateholder shall be designated the tax matters partner of the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury Regulations. If the Trust is treated as a partnership for U.S. federal income tax purposes, (i) for any taxable period beginning before December 31, 2017, the tax matters partner of the Trust shall represent the Trust (at the Trusts expense) in connection with all examinations of the Trusts affairs by tax authorities, including resulting judicial and administrative proceedings, and shall expend the Trust funds for professional services and costs associated therewith and (ii) for any taxable period beginning after December 31, 2017, the tax matters partner shall be designated as the partnership representative within the meaning of Section 6223 of the Code (as amended by P.L. 114-74, the Bipartisan Budget Act of 2015) and the Trust will, to the extent practicable, make the election described in Section 6226 of the Code (as amended by P.L. 114-74, the Bipartisan Budget Act of 2015). Finally, the Trust will not elect to apply Sections 6221-6241 of the Code (as amended by P.L. 114-74, the Bipartisan Budget Act of 2015) to any taxable period of the Trust beginning before December 31, 2017.
Section 5.06 Fiscal Year. The Trusts fiscal year shall end on December 31 of each calendar year.
Section 5.07 Tax Returns. In the event the Trust shall be required to file tax returns, the Servicer shall prepare or shall cause to be prepared such tax returns and shall provide such tax returns to the tax matters partner for signature on behalf of the Trust at least five (5) days before such tax returns are due to be filed. The Servicer, in accordance with the terms of each Indenture Supplement, shall also prepare or shall cause to be prepared all tax information required by law to be distributed to Noteholders and shall deliver such information to the Indenture Trustee at least five (5) days prior to the date it is required by law to be distributed to Noteholders. The Indenture Trustee, upon request, will furnish the Servicer with all such information pertaining to the Trust that has been provided to the Indenture Trustee as may be reasonably required in connection with the preparation of all tax returns of the Trust. In no event shall the Indenture Trustee be liable for any liabilities, costs or expenses of the Trust or any Noteholder arising under any tax law, including without limitation, federal, state or local income or excise taxes or any other tax imposed on or measured by income (or any interest or penalty with respect thereto arising from a failure to comply therewith) and in no event will the Indenture Trustee be liable for the preparation, execution or delivery of any tax filing.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01 General Authority. Subject to the provisions and limitations of Sections 2.03 and 2.06, the Owner Trustee shall have power and authority, and is hereby authorized and empowered in the name and on behalf of the Trust, and directed to execute and deliver on behalf of the Trust from time to time the Transaction Documents to which the Trust is or becomes a party and each certificate and other document attached as an exhibit to or contemplated by such Transaction Documents and any amendment or other agreement relating thereto (in each case, in such form as is furnished to the Owner Trustee from time to time by or on behalf of the Transferor or Equity Certificateholder or their respective counsel and upon
direction from the Equity Certificateholder). In addition to the foregoing, the Owner Trustee, in the name and on behalf of the Trust, shall also have the power and authority and is hereby authorized and empowered, but shall not be obligated, to take all actions required of the Trust pursuant to the Transaction Documents. The Owner Trustee shall also have the power and authority and is hereby further authorized and empowered from time to time to take such action expressly required of the Owner Trustee under the Transaction Documents or as the Equity Certificateholder, the Administrator, the Servicer or the Transferor directs or instructs in writing with respect to the Transaction Documents or any amendment thereto. The Owner Trustee shall not be liable for any action taken pursuant to the direction of the Equity Certificateholder, the Administrator, the Servicer or the Transferor.
Section 6.02 General Duties.
(a) It shall be the duty of the Owner Trustee to discharge (or cause to be discharged through such agents as shall be appointed) all of the responsibilities expressly required to be performed by the Owner Trustee pursuant to the terms of this Agreement and the Transaction Documents to which it is a party and to administer the Trust, as provided herein or as otherwise directed, in the interest of the Equity Certificateholder, subject to the Transaction Documents and in accordance with the provisions of this Agreement.
(b) Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the Transaction Documents to the extent the Administrator, the Servicer, the Transferor or any other Person has agreed to perform or has been assigned such duty or responsibility hereunder or in any Transaction Document to perform any act or discharge any duty of the Trust or the Owner Trustee hereunder or under any other Transaction Documents and the Owner Trustee (as such and in its individual capacity) shall not be liable for the default or failure of the Administrator, the Servicer, the Transferor or any other Person to carry out such duty or responsibility.
Section 6.03 Action Upon Instruction.
(a) The Owner Trustee shall have no duty to monitor or perform the obligations of the Trust, the Administrator, the Servicer, the Transferor or any other Person except as expressly agreed pursuant to this Agreement.
(b) The Owner Trustee shall not be required to take any action hereunder or under any other Transaction Document if the Owner Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Owner Trustee or is contrary to the terms hereof or of any other applicable Transaction Document or is otherwise contrary to law. The Owner Trustee shall not be liable for the failure to take any action pursuant to this paragraph (b).
(c) Whenever the Owner Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or under any other Transaction Document, the Owner Trustee shall promptly give notice (in such form as it deems appropriate under the circumstances) to the Equity Certificateholder requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts or refrains from
acting in good faith in accordance with any written instruction received from the Equity Certificateholder, the Owner Trustee shall not be liable on account of such action to any Person. Until the Owner Trustee shall have received the requested instruction it may, but shall be under no duty to, take or refrain from taking such action, as it shall deem to be in the best interests of the Equity Certificateholder, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the applicability of any provision of this Agreement or any other Transaction Document or believes any such provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Owner Trustee or is silent or incomplete as to the course of action that the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as it deems appropriate under the circumstances) to the Equity Certificateholder requesting instruction and, to the extent that the Owner Trustee acts or refrains from acting in good faith in accordance with any such instruction received from the Equity Certificateholder, the Owner Trustee shall not be liable, on account of such action or inaction, to any Person. Until the Owner Trustee shall have received the requested instruction it may, but shall be under no duty to, take or refrain from taking such action, as it shall deem to be in the best interests of the Equity Certificateholder, and shall have no liability to any Person for such action or inaction.
Section 6.04 No Duties Except as Specified in This Agreement or in Instructions. The Owner Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of or otherwise deal with the Trust Assets, or to otherwise take or refrain from taking any action under, or in connection with this Agreement or any Transaction Document or, any document contemplated hereby to which the Owner Trustee is a party, except as expressly provided by the terms of this Agreement or in any document or written instruction received by the Owner Trustee pursuant to Article IV, the second to last sentence of Section 6.01 or Section 6.03; and no implied duties or obligations shall be read into this Agreement or any other Transaction Document against the Owner Trustee. To the extent that, at law or in equity, the Owner Trustee has duties (including fiduciary duties) and liabilities relating thereto to the Trust or any other Person, the Owner Trustee shall not be liable to the Trust or any other Person for the Owner Trustees good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of the Owner Trustee otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of the Owner Trustee. The Owner Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or lien granted to it or the Trust hereunder or under any Transaction Document or to prepare or file any tax or securities law filing for the Trust or to record this Agreement or any other Transaction Document. The Owner Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the Trust Assets that result from actions by, or claims against, the Owner Trustee, in its individual capacity, that are not related to the ownership or the administration of the Trust Assets or the transactions contemplated by the Transaction Documents.
Section 6.05 No Action Except Under Specified Documents or Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any
part of the Trust Assets except (i) in accordance with the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with the Transaction Documents, or (iii) in accordance with any document or instruction delivered to the Owner Trustee pursuant to Article IV, the second to last sentence of Section 6.01 or Section 6.03.
Section 6.06 Restrictions. The Owner Trustee shall not take any action (i) that to the actual knowledge of a Responsible Officer of the Owner Trustee, is inconsistent with the purposes of the Trust set forth in Section 2.03 or (ii) that, to the actual knowledge of a Responsible Officer of the Owner Trustee, would result in the Trusts becoming taxable as a corporation for federal or state income tax purposes. None of the Equity Certificateholder, the Administrator, the Servicer, the Transferor or any other Person shall direct the Owner Trustee to take actions that would violate the provisions of this Section 6.06 or any Transaction Document.
To the fullest extent permitted by applicable law, the Trust, the Owner Trustee or any other Person on behalf of the Trust, shall not have the power to (i) institute proceedings to have the Trust declared or adjudicated bankrupt or insolvent, (ii) consent to the institution of bankruptcy or insolvency proceedings against the Trust, (iii) file a petition or consent to a petition seeking reorganization or relief on behalf of the Trust under any applicable federal or state law relating to bankruptcy, (iv) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or any similar official) of the Trust or any property of the Trust, (v) make any assignment for the benefit of the Trusts creditors, (vi) cause the Trust to admit in writing its inability to pay its debts generally as they become due or (vii) take any action, or cause the Trust to take any action, in furtherance of any of the foregoing (the actions listed in items (i) through (vii) above being hereinafter referred to as Bankruptcy Action). In the event that the Trust is eligible to be a debtor under the United States Bankruptcy Code, 11 U.S.C. § § 101 et seq., as amended, the parties hereto stipulate and agree that neither the Transferor, any Equity Certificateholder nor any other Person (such as the Administrator) shall commence any Bankruptcy Action on the part of the Trust or to direct the Owner Trustee to take any Bankruptcy Action on the part of the Trust.
Section 6.07 Certain Litigation Matters. The Owner Trustee shall provide prompt written notice to the Transferor, the Indenture Trustee, the Administrator and the Servicer of any action, proceeding or investigation involving the Trust actually known to a Responsible Officer of the Owner Trustee that could reasonably be expected to adversely affect the Trust or the Trust Assets or their respective rights or obligations under any Transaction Documents.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
Section 7.01 Acceptance of Trust and Duties. The Owner Trustee accepts the trust hereby created and agrees to perform only such duties as are expressly required to be performed by the Owner Trustee hereunder or otherwise directed by the Equity Certificateholder with respect to such trust but only upon the terms of this Agreement. The Owner Trustee also agrees to disburse all moneys actually received by it constituting part of the Trust Assets upon
the terms of the Transaction Documents to which the Trust is a party and this Agreement. The Owner Trustee shall not be liable or accountable hereunder or under any other Transaction Document under any circumstances in its individual capacity, except that the foregoing limitation shall not limit the liability, if any, that the Owner Trustee may have to the Equity Certificateholder (i) for the Owner Trustees own willful misconduct, bad faith, or gross negligence, (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 expressly made by the Owner Trustee in its individual capacity, (iii) for liabilities arising from the failure of the Owner Trustee to perform obligations expressly undertaken by it in the last sentence of Section 6.04 hereof or (iv) for taxes, fees or other charges on, based on or measured by, any fees, commissions or other compensation earned by the Owner Trustee for acting as owner trustee hereunder. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be personally liable for any error of judgment made in good faith by a Responsible Officer of the Owner Trustee, as applicable, so long as the same did not result from willful misconduct, bad faith or gross negligence on the part of such Responsible Officer;
(b) the Owner Trustee shall not be personally liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of the Requisite Global Majority, the Administrator, the Transferor, the Servicer or the Equity Certificateholder;
(c) no provision of this Agreement or any other Transaction Document shall require the Owner Trustee to expend or risk its personal funds or otherwise incur any financial liability in the performance of any of its rights, duties or powers hereunder or under any other Transaction Document if the Owner Trustee has reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be personally liable for the accuracy or performance of any representation, warranty, covenant, agreement or other obligation, including any indebtedness of the Trust evidenced by or arising under any of the Transaction Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Transferor or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Assets, or for or in respect of the validity or sufficiency of any Transaction Documents or other agreement entered into by the Trust, other than its signature on behalf of the Trust on, and the certificate of authentication on, the Equity Certificate, and the Owner Trustee shall in no event assume or incur any liability, duty, or obligation to any Noteholder or, other than as expressly provided for herein, to the Equity Certificateholder;
(f) the Owner Trustee shall not be liable for the default or misconduct of the Transferor, the Indenture Trustee, the Certificate Registrar or the Servicer under any of the Transaction Documents or otherwise and the Owner Trustee shall have no obligation or liability
to perform or monitor the performance of the obligations of the Indenture Trustee, the Certificate Registrar, the Administrator, the Servicer or the Transferor under any Transaction Document;
(g) notwithstanding anything contained herein to the contrary, the Owner Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will (i) require the registration with, licensing by or the taking of any other similar action in respect of, any State or other governmental authority or agency of any jurisdiction other than the State of Delaware by or with respect to the Owner Trustee (as such or in its individual capacity); (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivisions thereof in existence on the date hereof other than the State of Delaware becoming payable by the Owner Trustee (as such or in its individual capacity); or (iii) subject the Owner Trustee (as such or in its individual capacity) to personal jurisdiction in any jurisdiction other than the State of Delaware for causes of action arising from acts unrelated to the consummation of the transactions by the Owner Trustee contemplated hereby; and
(h) the Owner Trustee shall be under no obligation to exercise any of the rights or powers vested in or duties imposed by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any other Transaction Document at the request, order or direction of the Equity Certificateholder, unless the Equity Certificateholder has offered to the Owner Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Transaction Document shall not be construed as a duty, and except as otherwise provided in the third sentence of this Section 7.01, the Owner Trustee shall not be answerable for the performance of any such act.
Section 7.02 Furnishing of Documents. The Owner Trustee shall furnish to the Equity Certificateholder promptly upon receipt of a written request therefor from such Equity Certificateholder, duplicates or copies of all reports, notices, requests, demands, financial statements and any other instruments furnished to the Owner Trustee with respect to the Trust or the Trust Assets. The Owner Trustee may satisfy this requirement by posting such documents or making them available to the Equity Certificateholder.
Section 7.03 Representations and Warranties of the Owner Trustee. The Owner Trustee hereby represents and warrants to the Transferor, the Noteholders and the Equity Certificateholder that:
(a) It is a national banking association duly organized and validly existing in good standing under the laws of the United States.
(b) It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to execute and deliver on behalf of the Trust each other Transaction Document to which the Trust is a party (Related Documents).
(c) It has taken all corporate action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver the same on its behalf, and upon such execution and delivery of this Agreement, this Agreement shall constitute the legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms, except as the enforcement thereof may be subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally and general principles of equity (regardless of whether enforcement is sought in equity or at law).
(d) Neither the execution nor the delivery by it of this Agreement or, on behalf of the Trust, any Related Document, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will contravene any federal or Delaware law, governmental rule or regulation governing the trust powers of the Owner Trustee or any judgment or order binding on it, or constitute any default under its charter documents or bylaws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound or result in the creation or imposition of any lien, charge or encumbrance on the Trust Assets resulting from actions by or claims against the Owner Trustee individually which are unrelated to this Agreement or the other Transaction Documents.
(e) The execution, delivery and performance by it of this Agreement or, on behalf of the Trust, any Related Document, does not require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action in respect of, any Governmental Authority regulating the banking and corporate trust activities of banks or trust companies in the jurisdiction in which the Trust was formed.
(f) No litigation or administrative proceeding of or before any court, tribunal or governmental body is currently pending, or to the knowledge of the Owner Trustee threatened, against the Owner Trustee or any of its properties or with respect to this Agreement or any Related Document to which it is a party which, if adversely determined, would in the reasonable judgment of the Owner Trustee have a material adverse effect on the business, properties, assets or condition (financial or otherwise) of the Owner Trustee or the transactions contemplated by this Agreement or the Related Documents to which the Owner Trustee is a party.
Section 7.04 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and to be signed by the proper party or parties. The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or any other authorized officer of the relevant party, as to such fact or matter and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under this Agreement or the other Transaction Documents, the Owner Trustee, (i) may act directly or through its agents or attorneys pursuant to agreements entered into by any of them, and the Owner Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Owner Trustee in good faith, and (ii) may consult with counsel, accountants and other skilled persons to be selected in good faith and employed by it. The Owner Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the written opinion or advice of any such counsel, accountants or other such persons, provided that such actions do not violate the express terms of the Transaction Documents.
Section 7.05 Not Acting in Individual Capacity. Except as otherwise expressly provided in this Article VII, in accepting the trusts hereby created, Wilmington Trust, National Association, acts solely as Owner Trustee hereunder and not in its individual capacity, and all Persons having any claim against the Owner Trustee by reason of the transactions contemplated by this Agreement or any other Transaction Document shall look only to the Trust Assets for payment or satisfaction thereof.
Section 7.06 Owner Trustee Not Liable for Notes, Equity Certificate or Receivables. The recitals contained herein and in the Equity Certificate (other than the signature of the Owner Trustee on behalf of the Trust and the certificate of authentication on the Equity Certificate) shall be taken as the statements of the Transferor, and the Owner Trustee assumes no responsibility for the correctness thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement, any other Transaction Document or the Equity Certificate (other than the signature of the Owner Trustee and the certificate of authentication on the Equity Certificates), or of any Receivable or related documents or assets. The Owner Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity and enforceability of any Receivable, or the perfection and priority of any security interest created by any Receivable or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Trust Assets or the ability of such Trust Assets to generate the payments to be distributed to the Equity Certificateholder under this Agreement or the Noteholders under the Indenture; the existence and enforceability of any insurance thereon; the existence and contents of any Receivable or any computer or other record thereof; the validity of the assignment of any Receivable to the Trust or of any intervening assignment; the completeness of any Receivable; the performance or enforcement (except as expressly set forth in any Transaction Document) of any Receivable; the enforceability of any Receivable; the compliance by the Transferor or the Servicer with any warranty, representation or covenant made under any Transaction Document or in any related document or the accuracy of any such warranty or representation; or any action or inaction of the Administrator, the Transferor, the Equity Certificateholder, the Indenture Trustee or the Servicer or any subservicer taken in the name of the Owner Trustee or the Trust.
Section 7.07 Owner Trustee May Own Notes. The Owner Trustee in its individual or any other capacity may become the owner or pledgee of any of the Notes or the Equity Certificate and may deal with the Transferor, the Administrator, the Seller, the Indenture Trustee, the Servicer and Affiliates thereof in banking transactions with the same rights as it would have if it were not Owner Trustee.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
Section 8.01 Owner Trustees Fees and Expenses. The Owner Trustee shall receive as compensation for its services hereunder, such fees as have been separately agreed upon between the Owner Trustee and the Servicer and specified in a separate fee agreement between such parties. Additionally, the Owner Trustee shall be entitled to be reimbursed by the Trust for its other reasonable expenses hereunder, as applicable, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Owner Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder; provided, however, that the Owner Trustee shall only be entitled to reimbursement for expenses hereunder to the extent such expenses (i) are fees and expenses of outside counsel engaged by the Owner Trustee in respect of the performance of its obligations hereunder, or (ii) relate to the performance of its obligations hereunder. The Trust shall pay all fees, expenses and disbursements of the Owner Trustee out of Available Funds available for application or distribution to the Owner Trustee pursuant to the terms of each applicable Indenture Supplement. To the extent the Trust fails to pay such amounts due and owing to the Owner Trustee, the Servicer agrees to pay such amounts.
Section 8.02 Indemnification. (a) The Trust shall be liable as primary obligor for, and hereby indemnifies, defends and holds harmless the Owner Trustee (including in its individual capacity) and its officers, directors, employees, successors, assigns, agents and servants (collectively, the Indemnified Parties) from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, Expenses) which may at any time be imposed on, incurred by or asserted against the Owner Trustee, or any other Indemnified Party (whether or not also indemnified against by any other person) in any way relating to or arising out of (i) this Agreement, (ii) any other Transaction Document, (iii) the Trust Assets, (iv) the administration of the Trust Assets, or (v) the action or inaction of the Owner Trustee hereunder; provided, however, that the Transferor shall not be liable for or required to indemnify an Indemnified Party from and against Expenses arising or resulting from any of the matters described in the third sentence of Section 7.01; provided, further, that the liability of the Trust under this Section 8.02 shall be limited to the assets of the Trust and indemnity payments, if unpaid by the Trust, do not constitute a general recourse claim against the Trust, but shall be paid in accordance with the provisions of the applicable Indenture Supplement. In the event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section 8.02, the Owner Trustees choice of legal counsel shall be subject to the approval of the Transferor, which approval shall not be unreasonably withheld.
(b) Any amounts due and not paid by the Trust pursuant to this Section 8.02 within thirty (30) days of demand therefor by the Indemnified Party shall be deemed the obligation of USCC Services. The indemnities contained in this Section 8.02 shall survive the resignation, removal or termination of the Owner Trustee or the termination of this Agreement or the Trust. In the event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section 8.02, the Owner Trustees choice of legal counsel shall be
subject to the approval of USCC Services, which approval shall not be unreasonably withheld. The indemnities contained in this Section 8.02 shall be in addition to the indemnities provided by the Servicer pursuant to the Transfer and Servicing Agreement. USCC Services hereby agrees to advance the Expenses (including reasonable fees and expenses of counsel) to each Indemnified Party, in defending any claim, demand, action, suit or proceeding prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by USCC Services of an undertaking reasonably satisfactory to it, by or on behalf of such Indemnified Party, to repay such amount if it shall be determined that such Indemnified Party is not entitled to be indemnified therefor under this Section 8.02. Notwithstanding any provision in this Agreement or any other Transaction Document to the contrary, the obligations of USCC Services under this Section 8.02 shall survive the resignation or removal of any trustee of the Trust, and shall survive the termination of this Agreement and the termination of the Trust.
Section 8.03 Non-recourse Obligations. Notwithstanding anything in this Agreement or any other Transaction Document, but without limiting the rights of the Owner Trustee, or any other Indemnified Party under Section 8.02, the Owner Trustee agrees in its individual capacity and in its capacity as Owner Trustee for the Trust that all obligations of the Trust to the Owner Trustee individually or as Owner Trustee for the Trust shall be recourse to the Trust Assets only and specifically shall not be recourse to the assets of the Equity Certificateholder.
Section 8.04 Payments to the Owner Trustee. Any amounts paid to the Owner Trustee pursuant to this Article VIII shall be deemed not to be part of the Trust Assets immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST
Section 9.01 Termination of Trust.
(a) The Trust created by this Agreement shall dissolve upon the earliest of (i) the maturity or other liquidation of the last Receivable and Related Rights, and the subsequent distribution of amounts in respect of such Related Rights as provided in the Transaction Documents, and (ii) the payment to the Noteholders and any other party entitled thereto of the entire outstanding principal balance of the Notes, together with accrued and unpaid interest thereon to the date of repayment, and all other amounts required to be paid to such parties or to which such parties are entitled pursuant to this Agreement, the Transfer and Servicing Agreement and the other Transaction Documents; provided, that the rights to indemnification under Section 8.02 shall survive the dissolution and termination of the Trust. The bankruptcy, liquidation, dissolution, termination, resignation, expulsion, withdrawal, death or incapacity of the Equity Certificateholder shall not (x) operate to dissolve or terminate this Agreement or the Trust, or (y) to the fullest extent permitted by law, entitle such Equity Certificateholders legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Trust or Trust Assets, or (z) otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Notice of any dissolution or termination of the Trust shall be given by the Owner Trustee by letter to the Equity Certificateholder and the Administrator mailed within five (5) Business Days of the Owner Trustees receipt of written notice of such dissolution and the following information from the Administrator, such notice shall state that the final distribution of all amounts remaining in the Trust Accounts and all remaining Trust Assets shall be made by the Administrator upon presentation and surrender of the Equity Certificate to the Owner Trustee (with notice to the Administrator). In the event that the Equity Certificateholder shall not surrender its Equity Certificate for cancellation within six months after the date of the notice delivered by the Owner Trustee, the Administrator shall distribute any funds remaining in the Trust Accounts to the Transferor.
(c) Except as provided in Section 9.01(a), neither the Transferor nor the Equity Certificateholder shall be entitled to revoke or terminate the Trust.
(d) Upon the completion of winding up of the Trust by the Owner Trustee in accordance with the Delaware Statutory Trust Act following its dissolution including Section 3808(e) thereof, the Owner Trustee shall, at the direction and expense of the Transferor or as provided in Article VIII, cause the Certificate of Trust to be canceled by filing a certificate of cancellation with the Secretary of State in accordance with the provisions of Section 3810 of the Delaware Statutory Trust Act, and upon the effectiveness thereof, this Agreement (except for Article VIII) and the Trust shall terminate and be of no further force or effect.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01 Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation or association (i) satisfying the provisions of Section 3807(a) of the Delaware Statutory Trust Act; (ii) authorized to exercise corporate trust powers; (iii) having (or having a parent which has) a combined capital and surplus of at least $50,000,000 and being subject to supervision or examination by federal or state authorities; (iv) having (or having a parent which has) a rating in respect of its long term senior unsecured debt of at least investment grade by each of Moodys and Standard & Poors; (v) which is not an Affiliate of the Trust, the Transferor, or the Servicer, and (vi) does not offer or provide credit or credit enhancement to the Issuer or the Transferor. If such Person shall publish reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section 10.01, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of this Section 10.01, the Owner Trustee shall resign immediately in the manner and with the effect specified in Section 10.02.
Section 10.02 Resignation or Removal of Owner Trustee. The Owner Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Transferor, the Administrator, the Indenture Trustee and the Servicer at least
thirty (30) days before the date specified in such instrument. Upon receiving such notice of resignation, the Transferor shall promptly appoint a successor Owner Trustee, meeting the qualifications set forth in Section 10.01 by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have accepted appointment within thirty (30) days after the giving of such notice of resignation, the resigning Owner Trustee may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee; provided however, that such right to appoint or to petition for the appointment of any successor shall in no event relieve the resigning Owner Trustee from any obligations otherwise imposed on it under the Transaction Documents until such successor has in fact assumed such appointment.
If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 10.01 and shall fail to resign after written request therefor by the Transferor or if at any time the Owner Trustee shall be legally unable to act as such, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Transferor may remove the Owner Trustee. If the Transferor shall remove the Owner Trustee under the authority of the immediately preceding sentence, the Transferor shall promptly appoint a successor Owner Trustee meeting the qualification requirements of Section 10.01 by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee together with payment of all fees, expenses and indemnity payments owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section 10.02 shall not become effective until all fees and expenses, including any indemnity payments, due to the outgoing Owner Trustee have been paid and until acceptance of appointment by the successor Owner Trustee, pursuant to Section 10.03, and a certificate of amendment to the Trusts certificate of trust pursuant to Section 3810(b) of the Delaware Statutory Act has been filed. The Administrator shall notify each Rating Agency, the Equity Certificateholder and the Indenture Trustee promptly after the resignation or removal of the Owner Trustee and promptly after the appointment of a successor Owner Trustee.
Section 10.03 Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to the Transferor and to its predecessor Owner Trustee, an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective and such successor Owner Trustee without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor under this Agreement, with like effect as if originally named as Owner Trustee. The predecessor Owner Trustee, shall, upon receipt of fees, expenses and indemnity due and owing to the Owner Trustee pursuant hereto deliver to the successor Owner Trustee all documents, statements, properties and monies held by it under this Agreement; and the Transferor and the predecessor Owner Trustee shall execute and deliver such instruments and do such other things
as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this Section 10.03 unless at the time of such acceptance such successor Owner Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section 10.03, the Administrator shall mail notice thereof to the Equity Certificateholder and the Indenture Trustee. If the Administrator shall fail to mail such notice within ten (10) days after acceptance of appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Transferor.
Any successor Owner Trustee appointed pursuant to this Section 10.03 shall file an amendment to the Certificate of Trust with the Secretary of State identifying the name and principal place of business of such successor Owner Trustee in the State of Delaware.
Section 10.04 Merger or Consolidation of Owner Trustee. Any corporation or association into which the Owner Trustee may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a party, or any corporation or association succeeding to all or substantially all of the corporate trust business of the Owner Trustee shall be the successor of the Owner Trustee hereunder; provided, that such corporation or association shall be eligible pursuant to Section 10.01 without the execution or filing of any instrument or any further act on the part of any of the parties hereto; provided, further, that the Owner Trustee shall mail notice of such merger of consolidation to the Indenture Trustee not less than fifteen (15) days prior to the effective date thereof. Notwithstanding anything contained herein to the contrary, the successor Owner Trustee under this Section 10.04 shall file an amendment to the Certificate of Trust with the Secretary of State identifying the name and principal place of business of such successor in the State of Delaware, if required.
Section 10.05 Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust Assets may at the time be located, the Owner Trustee shall have the power and, at the request of the Transferor, shall execute and deliver all instruments to appoint one or more Persons, meeting all eligibility requirements of clauses (i) through (iii) of the first sentence of Section 10.01, to act as co-trustee, jointly with the Owner Trustee, or separate trustee or separate trustees, of all or any part of the Trust Assets, and to vest in such Person, in such capacity, such title to the Trust Assets, or any part thereof, and, subject to the other provisions of this Section 10.05, such powers, duties, obligations, rights and trusts as the Administrator and the Owner Trustee may consider necessary or desirable. If the Administrator shall not have joined in such appointment within fifteen (15) days after the receipt by it of a request to do so, the Owner Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor trustee pursuant to Section 10.01 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.01.
Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties, and obligations conferred or imposed upon the Owner Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Owner Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Owner Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties, and obligations (including the holding of title to the Trust Assets or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the written direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and
(c) the Administrator and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement and the conditions of this Article X. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Owner Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Owner Trustee. Each such instrument shall be filed with the Owner Trustee with a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Supplements and Amendments.
(a) This Agreement may be amended from time to time by the Transferor and the Owner Trustee, by a written instrument signed by each of them, without the consent of the Indenture Trustee, any of the Noteholders or any Series Enhancer, in order to (i) cure any ambiguity, (ii) correct or supplement any provision herein or in any amendment
hereto that may be inconsistent with any other provision herein or in any amendment hereto, (iii) make any other provisions with respect to matters or questions arising under this Agreement or in any amendment hereto, which shall not be inconsistent with the provisions of this Agreement, or (iv) qualify for particular accounting treatment; provided, however, that the Transferor shall have delivered to the Owner Trustee (w) a Tax Opinion, and (x) an Officers Certificate, dated the date of any such amendment, to the effect that the Transferor reasonably believes that taking such action will not have an Adverse Effect. The Transferor shall provide notice of any such amendment to each Rating Agency if so required under the applicable Indenture Supplement. Additionally, notwithstanding the preceding sentence, this Agreement may be amended by the Transferor and the Owner Trustee, by a written instrument signed by each of them, without the consent of the Indenture Trustee, any of the Noteholders or any Series Enhancer, to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Trust to avoid the imposition of state or local income or franchise taxes imposed on the Trusts property or its income; provided, however, that (y) the Transferor delivers to the Owner Trustee an Officers Certificate to the effect that the proposed amendments meet the requirements set forth in this subsection (including the Tax Opinion requirement in clause (a)(iv)(x)), and (z) such amendment does not affect the rights, duties or obligations of the Indenture Trustee or the Owner Trustee hereunder.
(b) This Agreement may also be amended from time to time by the Transferor and the Owner Trustee with the consent of the Indenture Trustee, as directed in writing by the Holders of Notes evidencing not less than 50% of the Outstanding Amount of the Notes of each adversely affected Series of Notes Outstanding for which the Transferor has not delivered an Officers Certificate of the Transferor stating that there is no Adverse Effect, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders; provided, however, that no such amendment shall, without the consent of the Indenture Trustee, as directed in writing by the Holder of each Outstanding Note adversely affected thereby, (i) reduce in any manner the amount of or delay the timing of any distributions (changes in Amortization Events the decrease the likelihood of the occurrence thereof shall not be considered delays in timing of distributions for purposes of this clause) to be made to Noteholders or deposits of amounts to be so distributed or the amount available under any Series Enhancement without the consent of each affected Noteholder, (ii) change the definition of or the manner of calculating the interest of any Noteholder without the consent of each affected Noteholder, (iii) reduce the aforesaid percentage required to consent to any such amendment without the consent of each Noteholder or (iv) adversely affect the rating of any Series by each Rating Agency, if applicable, without the consent of each Noteholder of such Series.
(c) Promptly after the execution of any such amendment or consent, the Transferor shall furnish written notification of the substance of such amendment or consent to the Equity Certificateholder, the Indenture Trustee and the Administrator. It shall not be necessary for the consent of the Equity Certificateholder, Noteholders or the Indenture Trustee pursuant to this Section 11.01 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof. The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Noteholders shall be subject to such reasonable requirements as the Indenture Trustee may prescribe.
(d) Promptly after the execution of any amendment to the Certificate of Trust, the Owner Trustee shall cause the filing of such amendment with the Secretary of State.
(e) Prior to the execution of any amendment or supplement to this Agreement or the Certificate of Trust, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and the other Transaction Documents, and that all conditions precedent to the execution and delivery of such amendment as set forth in the applicable Transaction Documents have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into any such amendment that affects the Owner Trustees own rights, duties or immunities under this Agreement or otherwise.
(f) The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustees rights, duties or immunities under this Agreement or otherwise.
Section 11.02 Limitations on Rights of Others. The provisions of this Agreement are solely for the benefit of the Owner Trustee (individually and in its capacity as such), the Transferor, the Equity Certificateholder and, to the extent expressly provided herein, the Indenture Trustee and the Noteholders, and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Trust Assets or under or in respect of this Agreement or any covenants, conditions or provisions contained herein.
Notwithstanding anything contained herein to the contrary, the Owner Trustee undertakes to perform or observe only such of the covenants and obligations of the Owner Trustee as are expressly set forth in this Agreement, and no implied covenants or obligations with respect to the Noteholders shall be read into this Agreement against the Owner Trustee. The Owner Trustee shall not be deemed to owe any fiduciary duty to the Noteholders, and shall not be liable to any person specified in this Section 11.02, other than the Equity Certificateholder as expressly set forth in this Agreement.
Section 11.03 Notices. All demands, notices, instructions, directions and communications under this Agreement shall be delivered as specified in Appendix A of the Transfer and Servicing Agreement. Each party hereto may, by notice given in accordance herewith to each of the other parties hereto, designate any further or different address to which subsequent notices shall be sent.
Section 11.04 Severability of Provisions. If any one or more of the covenants, agreements, provisions, or terms of this Agreement shall be for any reason whatsoever held invalid or unenforceable, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or the Equity Certificate or the rights of the Equity Certificateholder in respect thereof.
Section 11.05 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts including by electronic
imaging transmission thereof, each of which shall be an original and all of which shall constitute one and the same instrument.
Section 11.06 Successors and Assigns. All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, each of the Transferor, the Owner Trustee, and their respective successors and permitted assigns and the Equity Certificateholder and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by the Equity Certificateholder shall bind the successors and assigns of such Equity Certificateholder.
Section 11.07 No Petition.
(a) The Transferor and the Equity Certificateholder will not at any time institute against (or solicit or cooperate with or encourage any Person to institute against) the Trust, or join in any institution against the Trust of, any bankruptcy proceedings under any United States federal or state bankruptcy or similar law.
(b) The Owner Trustee, in its individual capacity, by entering into this Agreement, and the Equity Certificateholder, by accepting the Equity Certificate and each Noteholder, by accepting the benefits of this Agreement, hereby covenant and agree that they will not at any time institute against (or solicit or cooperate with or encourage any Person to institute against) the Transferor or the Trust, or join in any institution against the Transferor or the Trust of, any bankruptcy proceedings under any United States federal or state bankruptcy or similar law.
(c) The parties hereto agree that the obligations of this Section 11.07 shall survive termination of this Agreement.
Section 11.08 No Recourse. The Equity Certificateholder by accepting the Equity Certificate acknowledges that the Equity Certificateholders Equity Certificate represents beneficial interests in the Trust only and does not represent interests in or obligations of the Transferor, the Servicer, the Administrator, the Owner Trustee (as such or in its individual capacity), the Indenture Trustee or any of their respective Affiliates and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement, the Equity Certificate or the other applicable Transaction Documents.
Section 11.09 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 11.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.11 JURISDICTION. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE DISTRICT OF DELAWARE AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS.
Section 11.12 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 11.12 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OF THIS AGREEMENT OR ANY TRANSACTION DOCUMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, AMENDMENTS AND RESTATEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT.
Section 11.13 No Legal Title to Trust Assets in the Equity Certificateholder. The Equity Certificateholder shall not have legal title to any part of the Trust Assets. The Equity Certificateholder shall be entitled to receive distributions with respect to its undivided beneficial ownership interest therein.
Section 11.14 No Waivers; Remedies. No failure to exercise and no delay in exercising, on the part of the parties hereto any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided under this Agreement are cumulative and not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 11.15 Entire Agreement. This Agreement, including all Exhibits, Schedules and Appendices and other documents attached hereto or incorporated by reference herein, together with the other Transaction Documents, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all other negotiations, understandings and representations, oral or written, with respect to the subject matter hereof.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written.
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USCC RECEIVABLES FUNDING LLC, | |
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as Transferor | |
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[Signature Page to Amended and Restated Trust Agreement]
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WILMINGTON TRUST, | |
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NATIONAL ASSOCIATION, | |
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as Owner Trustee | |
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[Signature Page to Amended and Restated Trust Agreement]
ACCEPTED AND AGREED: |
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USCC SERVICES, LLC, |
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in its individual capacity and as Administrator |
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[Signature Page to Amended and Restated Trust Agreement]
EXHIBIT A
Section 3.01 Certificate
The undersigned, a duly authorized officer [ ], hereby certifies, in connection with its purchase of the Equity Certificate, that:
(A) following such transfer, there would be no more than one holder of the Equity Certificate and the holder of the Equity Certificate would not be a Foreign Person, a disregarded entity, a partnership, Subchapter S corporation or grantor trust,
(B) such transfer complies with and does not violate any state securities laws, any Blue Sky laws or the Securities Act, and
(C) such transferee is not acquiring such Equity Certificate for, or with the assets of, a Benefit Plan.
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EXHIBIT B
Form of Equity Certificate
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN USCC EIP LLC, USCC RECEIVABLES FUNDING LLC, USCC SERVICES, LLC, UNITED STATES CELLULAR CORPORATION, OR ANY AFFILIATE OF THE FOREGOING, OTHER THAN USCC MASTER NOTE TRUST. THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT (AS DEFINED BELOW) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED UNLESS THE CONDITIONS SET FORTH IN SECTION IN SECTION 3.01 AND SECTION 3.04 OF THE TRUST AGREEMENT HAVE BEEN COMPLIED WITH.
THIS CERTIFICATE MAY NOT BE TRANSFERRED TO OR HELD BY AN EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (ERISA) THAT IS SUBJECT TO TITLE I OF ERISA, A PLAN AS DEFINED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) THAT IS SUBJECT TO SECTION 4975 OF THE CODE, AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLANS OR PLANS INVESTMENT IN SUCH ENTITY, OR A GOVERNMENTAL, CHURCH, NON-U.S. OR OTHER PLAN SUBJECT TO ANY FEDERAL, STATE, LOCAL OR NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.
THIS CERTIFICATE IS TRANSFERABLE ONLY IN WHOLE AND NOT IN PART. THIS CERTIFICATE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND THIS CERTIFICATE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
USCC MASTER NOTE TRUST
EQUITY CERTIFICATE
NO. 1 |
Equity Certificate |
This certifies that USCC RECEIVABLES FUNDING LLC is the registered owner of a beneficial interest in the assets of USCC Master Note Trust (the Trust) formed by USCC Receivables Funding LLC, a Delaware limited liability company (the Transferor). The Trust was created pursuant to a Trust Agreement, dated as of October 24, 2017, as amended and restated pursuant to an Amended and Restated Trust Agreement dated as of December 20, 2017 (as amended, restated, supplemented and/or otherwise modified from time to time, the Trust Agreement), between the Transferor and Wilmington Trust, National Association, as Owner Trustee (not in its individual capacity but solely as trustee, the Owner Trustee), a summary of certain of the pertinent provisions of which is set forth below. In the event of any conflict or inconsistency between this Certificate and the Trust Agreement, the Trust Agreement shall
govern. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Trust Agreement.
This Certificate is the duly authorized Equity Certificate issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the Holder of this Certificate by virtue of its acceptance hereof assents and by which such Holder is bound. The Trust has also issued Notes. The property of the Trust includes, among other things, all the right, title and interest of the Transferor in and to the Receivables Related Rights delivered from time to time on related Addition Dates and the other Trust Assets.
The amount to be distributed to the Holder of this Certificate on each Payment Date will be determined pursuant to the Transfer and Servicing Agreement.
It is the intent of the Servicer, the Transferor, the Owner Trustee, and the Equity Certificateholder that, for purposes of federal income, state and local income and single business tax and any other income taxes, the Trust will be disregarded as a separate entity for U.S. federal income tax purposes pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii) and that all items of income, deduction, gain, loss or credit of the Trust will be treated as such items of the Equity Certificateholder. The Transferor and the Equity Certificateholder, by acceptance of this Certificate, agrees to treat, and to take no action inconsistent with such treatment of, the Trust in the manner provided in this paragraph for U.S. federal income tax purposes.
The Equity Certificateholder, by its acceptance of this Certificate or a beneficial. interest in the Trust evidenced by this Certificate, covenants and agrees that such Equity Certificateholder will not at any time institute against (or solicit or cooperate with or encourage any Person to institute against) the Trust or the Transferor, or join in any institution against the Trust or the Transferor of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law. The foregoing shall not limit the rights of the Equity Certificateholder to file any claim in, or otherwise take an action with respect to, any insolvency proceeding that was instituted against the Transferor or the Trust by a Person other than the Equity Certificateholder.
Distributions on this Certificate from or in respect of Trust Assets will be made as provided in the Trust Agreement by the Paying Agent by wire transfer or check mailed to the Equity Certificateholder of record in the Certificate Register without the presentation or surrender of this Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final distribution on this Certificate will be made after due notice by the Paying Agent of the pendency of such distribution and only upon presentation and surrender of this Certificate at the office or agency maintained for that purpose by the Owner Trustee.
Reference is hereby made to the further provisions of this Certificate set forth herein below, which further provisions shall for all purposes have the same effect as if set forth herein.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, or its authenticating agent, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or any other Transaction Document or be valid for any purpose.
This Certificate may only be transferred in accordance with the requirements of Article III of the Trust Agreement. Any transferee of the Certificate must certify, among other things, that it is not acquiring the Certificate for, or with the assets of, a Benefit Plan.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
This Certificate does not represent an obligation of, or an interest in, the Transferor, the Owner Trustee (as such or in its individual capacity), or any of their respective Affiliates (other than the Trust) and no recourse may be had against such parties or their assets, except as expressly set forth or contemplated herein or in the Trust Agreement or the other Transaction Documents. In addition, this Certificate is not guaranteed by any governmental agency or instrumentality and is limited in right of payment to certain collections and recoveries with respect to the Trust Assets and certain other amounts, in each case as more specifically set forth in the Trust Agreement. A copy of the Trust Agreement may be examined by any Equity Certificateholder upon written request during normal business hours at the principal office of the Transferor and at such other places, if any, designated by the Transferor.
The Trust Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Transferor and the rights of the Equity Certificateholder under the Trust Agreement at any time by the Transferor and the Owner Trustee, with the consent of the parties described therein. Any such consent shall be conclusive and binding on the Equity Certificateholder and on all future Holders of this Certificate and of any Certificate issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent is made upon this or such Certificate.
As provided in the Trust Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the offices or agencies of the Certificate Registrar, accompanied by a written instrument of transfer in form satisfactory to the Certificate Registrar executed by the Equity Certificateholder hereof or such Equity Certificateholders attorney duly authorized in writing, and thereupon a new Certificate evidencing the same beneficial interest in the Trust will be issued to the designated transferee.
Except as provided in the Trust Agreement, this Certificate is issuable only as a registered Equity Certificate without coupons. No service charge will be made for any registration of transfer of this Certificate, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any of their respective agents may treat the Person in whose name this Certificate is registered in the Certificate Register as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Registrar or any such agent shall be affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and the Trust created thereby shall terminate upon the payment to the Equity Certificateholder of all amounts required to be paid to such Equity Certificateholder pursuant to the Trust Agreement and the Transfer and Servicing Agreement and the disposition in accordance with any applicable Transaction Document of all property held as part of the Trust Assets.
This Certificate may not be acquired by a Benefit Plan. By accepting and holding this Certificate, the Holder hereof shall be deemed to have represented and warranted that it is not a Benefit Plan and is not acquiring this Certificate for the account of such an entity.
This Certificate has been executed by Wilmington Trust, National Association, not in its individual capacity but solely in its capacity as Owner Trustee and in no event shall Wilmington Trust, National Association in its individual capacity or as Owner Trustee have any liability for the representations, warranties, covenants, agreements or other obligations of the Trust or any other Person hereunder or other documents delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Trust. For all purposes of this Certificate, in the performance of any duties or obligations of the Owner Trustee hereunder, the Owner Trustee shall be entitled to the benefits of the terms and provisions of the Trust Agreement.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly executed.
Dated: [ ], 2017 |
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USCC MASTER NOTE TRUST | ||
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Wilmington Trust, National Association, not | |
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CERTIFICATE OF AUTHENTICATION
This is the Equity Certificate referred to in the within-mentioned Trust Agreement.
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Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | |
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee) |
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the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing |
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to transfer said Certificate on the books of the certificate Registrar, with full power of substitution in the premises. |
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Signature Guaranteed: |
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NOTICE Signature(s) must be guaranteed by an eligible guarantor institution. |
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NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Certificate in every particular, without alteration or enlargement or any change whatsoever. |