in its capacity as trustee of
GLACIER CREDIT CARD TRUST
as Indenture Trustee
AMENDED AND RESTATED
SERIES 1997-1 SUPPLEMENT
to
Liquidity Notes, Series 1997-1
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Section 1.3 Interpretation Provisions in Indenture. ...........................................................14
Section 1.4 Exhibits. ..........................................................................................................14
Section 1.7 Discontinuance and Changes in Designation of Ratings. ...............................15
Article 2 CREATION AND ISSUANCE OF THE SERIES 1997-1 NOTES 16
Section 2.1 Authorization of Creation and Issuance of Series 1997-1 Notes. ...................16
Section 2.2 Certain Principal Terms of the Commercial Paper. ........................................16
Section 2.3 Additional Conditions Precedent for the Issuance of Commercial Paper.......18
Section 2.4 Certain Principal Terms of the Liquidity Notes..............................................20
Section 2.5 Conditions Precedent for the Issuance of Liquidity Notes. ............................21
Section 2.6 Certain Principal Terms of the Subordinated Notes. ......................................21
Section 2.7 Conditions Precedent for Subordinated Notes. ...............................................21
Section 2.8 Protection of Commercial Paper Note Agent. ................................................23
Article 3 ADDITIONAL COVENANTS OF TRUST; PERMITTED ACTIVITIES; REMEDIES 24
Section 3.1 Covenants........................................................................................................24
Section 3.3 Acceleration. ...................................................................................................30
Article 4 ACCUMULATIONS ACCOUNT 31
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Section 5.1 Payments from Accumulations Account prior to Amortization Commencement Day..............................................................................................32
Section 5.2 Payments from Accumulations Account during Amortization Period. ..........35
Section 5.3 Payments from Accumulations Account following Acceleration. .................37
Section 5.4 Final Payments................................................................................................40
Section 5.6 Priority of Hedging Counterparties, Credit Enhancers and Liquidity Lenders...................................................................................................................41
Section 5.7 Meaning of “payable”. ....................................................................................41
Section 5.8 Election to Redeem. ........................................................................................41
Article 6 PAYMENTS AND REPORTS 42
Section 6.1 Payments on Commercial Paper. ....................................................................42
Section 6.2 Payments on Liquidity Notes..........................................................................42
Section 6.3 Withholding Tax. ............................................................................................43
Section 6.6 Statements to Series 1997-1 Noteholders. ......................................................43
Section 6.7 Availability of Certain Documents. ................................................................44
Article 7 RIGHTS OF LIQUIDITY LENDERS 44
Section 7.1 Rights of Liquidity Lenders. ...........................................................................44
Article 8 SUPPLEMENTAL INDENTURES 45
Section 8.2 Amendments to Series 1997-1 Purchase Agreement......................................48
Article 9 MISCELLANEOUS PROVISIONS 48
Section 9.1 Notices to Rating Agencies.............................................................................48
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Section 9.4 Counterparts. ...................................................................................................49
Exhibit A-1 FORM OF DISCOUNT COMMERCIAL PAPER NOTE 51
Exhibit A-2 FORM OF INTEREST BEARING COMMERCIAL PAPER NOTE (As Contemplated in Section 2.2(9) of this Series Supplement) 53
Exhibit B FORM OF LIQUIDITY NOTE 56
Exhibit C IDENTIFICATION OF ACCUMULATIONS ACCOUNT 59
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THIS AMENDED AND RESTATED SERIES 1997-1 SUPPLEMENT dated as of February 9, 2018 supplements the Indenture in relation to the Series 1997-1 Notes,
BETWEEN:
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company under the laws of Canada, in its capacity as trustee of GLACIER CREDIT CARD TRUST
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BNY TRUST COMPANY OF CANADA, a trust company under the laws of Canada, in its capacity as Indenture Trustee
WHEREAS Computershare Trust Company of Canada (the successor to The Canada Trust Company, itself successor by way of assignment to Montreal Trust Company of Canada, itself the successor by way of amalgamation to Montreal Trust Company), in its capacity as trustee of Glacier Credit Card Trust (formerly, Canadian Tire Receivables Trust) (the “Trust”) and BNY Trust Company of Canada (the successor by way of assignment to BMO Trust Company (formerly, The Trust Company of Bank of Montreal)) (the “Indenture Trustee”) have entered into a trust indenture dated as of November 29, 1995, as amended as of November 15, 2004, November 11, 2010 and February 8, 2012 (the “Indenture”);
AND WHEREAS pursuant to Section 3.1of the Indenture, the Trust may from time to time create and issue one or more new Series and one or more Classes within a Series, subject to the satisfaction of certain conditions set forth therein and in the related Supplement;
AND WHEREAS the Principal Terms of any new Series are to be set forth in the related Supplement, which supplements the Indenture in relation to such Series;
AND WHEREAS the parties have executed and delivered a Series Supplement dated as of March 10, 1997, as amended as of May 31, 2016, relating to the Series 1997-1 Notes (the “Series 1997-1 Supplement”) in order to establish the Principal Terms thereof and to provide for the creation, issuance, certification and delivery thereof;
AND WHEREAS the parties wish to amend and restate the Series 1997-1 Supplement in its entirety;
NOW THEREFORE THIS SERIES SUPPLEMENT WITNESSES and it is hereby covenanted, agreed and declared as follows:
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ARTICLE 1 INTERPRETATION
Section 1.1 Definitions. All initial capitalized terms used in this Series Supplement that are defined in the Indenture, either directly or by reference therein, shall have the meanings specified therefor in the Indenture, except to the extent that, subject to Section 1.2, such terms are defined or modified in this Series Supplement or the context otherwise requires. If initial capitalized terms are not defined in this Series Supplement and are defined in the Indenture by reference to the Pooling and Servicing Agreement, such terms shall have the respective meanings specified therefor in the Pooling and Servicing Agreement, as supplemented by the Series 1997-1 Purchase Agreement. References in this Series Supplement to the Pooling and Servicing Agreement shall mean such agreement as supplemented by the Series 1997-1 Purchase Agreement. In addition, whenever used in this Series Supplement or in the Indenture with respect to the Series 1997-1 Notes, the Commercial Paper, the Liquidity Notes or the Subordinated Notes, as applicable, the following terms shall have the following meanings, respectively:
“Acceleration Rate” shall mean, with respect to a Discount Note, a rate of interest equal to the Yield to Maturity of such Note;
“Accrued Note Liability” shall mean, at any time with respect to a Discount Note, an amount equal to
(MA IP) x DI OT
where:
MA = the amount stated to be payable on the Maturity Date of the Discount Note
IP = the Issue Price of the Discount Note
DI = the number of days (not exceeding the term of the Discount Note), since the creation and issuance of the Discount Note, including the day on which the Discount Note was created and issued but not including the day on which the calculation is made
OT = the original term of the Discount Note expressed in days,
including the day on which the Discount Note was created and issued but not including its Maturity Date;
“Accumulations Account” shall mean, in respect of the Series 1997-1 Notes, the account defined as such and maintained by the Trust pursuant to Section 4.1(1);
“Adjustment Payment” shall mean the payment of an amount, if any, as specified in the indenture supplemental referred to in Section 2.1(3)(a) upon the creation and issuance of Subordinated Notes after the Series Issuance Date for the Subordinated Notes;
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“Annual Distribution Amount” shall have the meaning specified therefor in the Declaration of Trust;
“Available Funds” shall mean, on a day, funds equal in amount to the lesser of:
(a) the aggregate amount deposited into the Accumulations Account on or prior to such day pursuant to the Pooling and Servicing Agreement, the Indenture or this Series Supplement, plus the net income earned on such deposits that have been invested in accordance with Section 4.1(2), plus any amount deposited into the Accumulations Account on or prior to such day pursuant to Section 3.1(1)(e), less the aggregate of all amounts withdrawn from the Accumulations Account prior to such day in accordance with Article 5; and
(b) the amount specified to be paid on such day pursuant to the Distribution Notice,
plus, any amount deposited to the Accumulations Account pursuant to Section 3.2(3);
“Basic Documents” shall mean, in respect of the Series 1997-1 Notes, in addition to the documents referred to in the Indenture as “Basic Documents” applicable to all outstanding Series, the Series 1997-1 Purchase Agreement;
“Commercial Paper Note” shall mean any one of the Class of Series 1997-1 Notes evidenced by one or more certificates created, issued and executed by the Trust and certified and delivered by the Commercial Paper Note Agent, in its capacity as Note Agent, from time to time pursuant to the Indenture and this Series Supplement, substantially in the forms set out in Exhibits A-1 or A-2, and “Commercial Paper” or “Commercial Paper Notes” shall mean all such Notes;
“Commercial Paper Note Agent” shall mean Bank of Montreal or any successor or permitted assign thereof or any other Person designated as such in any Series 1997-1 IPA Agreement or any successor or permitted assign of such other Person;
“Commercial Paper Note Rate” shall mean, with respect to an interest bearing Commercial Paper Note, a Note Rate equal to the rate of interest specified therein;
“Credit Enhancement” shall mean any letter of credit, surety bond, cash collateral account, spread account, guarantee, credit support agreement, tax protection agreement or any other similar agreement, or any combination of such agreements or any option with respect thereto, entered into from time to time by the Trust with any other Person in relation to the Series 1997-1 Notes or a Class of Series 1997-1 Notes;
“Credit Enhancement Agreement” shall mean a document governing the terms of a Credit Enhancement or pursuant to which a Credit Enhancement is issued or outstanding and any other document executed and delivered thereunder or pursuant thereto by the Trust to the Credit Enhancer under such Credit Enhancement Agreement, as each may be amended, supplemented, modified or restated from time to time;
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“Credit Enhancement Proceeds” shall have the meaning specified therefor in the Series 1997-1 Purchase Agreement;
“Credit Enhancer” shall mean any Person (other than the Indenture Trustee) providing a Credit Enhancement pursuant to a Credit Enhancement Agreement, or any successor or permitted assign thereof;
“CTB” shall mean Canadian Tire Bank and its successors and permitted assigns;
“Declaration of Acceleration” shall have the meaning specified therefor in Section 3.3;
“Discount Note” shall mean a Commercial Paper Note created and issued at a discount to mature at its face amount and which is not by its terms interest bearing, except upon the failure to pay on a Payment Date;
“Distribution Notice” shall have the meaning specified therefor in the Series 1997-1 Purchase Agreement, as supplemented and superseded from time to time by information set forth in the effective Funding Profile Notice, and as amended, modified or replaced from time to time as permitted pursuant to the Series 1997-1 Purchase Agreement;
“Eligible Institution” shall have the meaning specified therefor in the Series 1997-1 Purchase Agreement;
“Eligible Investments” shall mean, in relation to investments made with funds on deposit in the Accumulations Account with respect to the Series 1997-1 Notes, book-entry securities, negotiable instruments or securities represented by instruments in bearer or registered form payable in Canadian Dollars having original or remaining maturities of 30 days or less which evidence at the time such investment is made:
(a) direct obligations of, and obligations fully guaranteed as to timely payment by, Canada, so long as Canada has a rating of F1+ (short term) or AA- (long term) or better from Fitch, or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of Canada, so long as Canada has a rating of F1+ (short term) or AA- (long term) or better from Fitch;
(b) securities of or guaranteed by a province of Canada or a municipality in Canada having a rating of (i) R-1 (low) (short term) or better or A (long term) or better from DBRS, and (ii) F1+ (short term) or AA- (long term) or better from Fitch;
(c) demand deposits, time deposits or certificates of deposit of any chartered bank (including any Affiliate of the Indenture Trustee) or trust company incorporated under the laws of Canada or any province thereof and subject to supervision and examination by federal banking or depository institution authorities; provided, however, that the commercial paper or other short-term unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such depository institution or trust company) thereof shall have a credit rating of (i) R-1 (low) (short term) or better or A (long term) or
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better from DBRS, and (ii) F1+ (short term) or AA- (long term) or better from Fitch;
(d) commercial paper issued by a Canadian corporation having a rating of (i) R-1 (low) (short term) or better from DBRS, and (ii) F1+ (short term) from Fitch;
(e) asset-backed commercial paper backed by global style liquidity having a rating of (i) R-1 (high) (sf) (short term) from DBRS, and (ii) F1+sf (short term) from Fitch;
(f) investments in money market funds having a rating of (i) AAA from DBRS, and (ii) AAAmmf from Fitch;
(g) demand deposits, time deposits and certificates of deposit of any chartered bank or trust company incorporated under the laws of Canada or any province thereof which are fully insured by Canada Deposit Insurance Corporation;
(h) bankers’ acceptances issued by any chartered bank referred to in clause (c) above, other than bankers’ acceptances of Schedule II chartered banks which are not guaranteed by a parent of such chartered bank;
(i) repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, Canada, so long as Canada has a rating of F1+ (short term) or AA- (long term) or better from Fitch, or any agency or instrumentality thereof, the obligations of which are backed by the full faith and credit of Canada, so long as Canada has a rating of F1+ (short term) or AA- (long term) or better from Fitch, in either case entered into with a Schedule I chartered bank with a rating from each applicable Rating Agency equivalent to at least (i) AA(low) (long term) or better from DBRS, and (ii) AA- (long term) or better from Fitch, or a trust company (acting as principal) described in clause (c);
(j) deposits in a deposit account established and maintained with an Eligible Institution or an institution that otherwise satisfies the Rating Agency Condition; or
(k) any other investment in respect of which the Rating Agency Condition shall have been satisfied;
“Fitch” shall mean Fitch Ratings, Inc., or its successor;
“Hedging Agreement” shall mean any interest rate exchange agreement, interest rate cap, collar or floor agreement, forward rate agreement or any other similar agreement, or any combination of such agreements or any option with respect thereto, entered into from time to time by the Trust with any other Person in relation to the Series 1997-1 Notes or a Class of Series 1997-1 Notes and any other document executed and delivered thereunder or pursuant thereto by the Trust to the Hedging Counterparty under such Hedging Agreement, as each may be amended, supplemented, modified, restated or replaced from time to time;
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“Hedging Counterparty” shall mean any Person which is a party to a Hedging Agreement, other than the Trust, or any successor or permitted assign thereof;
“Hedging Proceeds” shall have the meaning specified therefor in the Series 1997-1 Purchase Agreement;
“Indenture” shall have the meaning specified therefor in the recitals hereto;
“Issue Price” shall mean, with respect to a Discount Note, the amount paid by the original Holder of such Discount Note to purchase it;
“Liquidity Lender” shall mean a financial institution or other Person who is a party to a Series Liquidity Agreement and holds beneficially or otherwise a Liquidity Note, whether or not any amount is owing thereunder;
“Liquidity Lender Direction” shall mean, in respect of Liquidity Lenders under a Series Liquidity Agreement, a direction of such number of the Liquidity Lenders as is specified under the Series Liquidity Agreement or, if there is only one Liquidity Lender under the Series Liquidity Agreement, a direction of such Liquidity Lender;
“Liquidity Note” shall mean any one of the Class of Series 1997-1 Notes evidenced by one or more certificates created, issued and executed by the Trust and certified and delivered by the applicable Note Agent, from time to time pursuant to the Indenture and this Series Supplement, substantially in the form set out in Exhibit B, and “Liquidity Notes” shall mean all such Notes;
“Maturity Date” shall mean, with respect to a Commercial Paper Note, the date specified in such Note as the “Maturity Date”;
“Net Asset Value” shall mean, for a day:
(a) the sum of:
(i) the Invested Amount of the Series 1997-1 Ownership Interest on the day (including the Invested Amount of any Additional Ownership Interest to be paid for or funded by the creation and issuance of additional Series 1997-1 Notes on such day);
(ii) all cash on deposit in the Accumulations Account on the day or which, but for Section 6.3(2) of the Pooling and Servicing Agreement, would have been on deposit in the Accumulations Account on the day;
(iii) the market value of all Eligible Investments acquired with the proceeds of amounts distributed to the Trust in relation to the Series 1997-1 Ownership Interest and held by the Trust on such day plus all accrued interest or accrued discount thereon (if not taken into account in determining the market value thereof); and
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(iv) the Hedging Proceeds on the day and the Credit Enhancement Proceeds on the day,
minus
(b) the sum of:
(i) the aggregate unpaid principal amount of all Series 1997-1 Notes then outstanding on such day immediately prior to the creation and issuance of the additional Series 1997-1 Notes on such day and all accrued interest thereon or, in the case of Discount Notes, the Accrued Note Liability thereon;
(ii) the amount on such day of all accrued and unpaid Series 1997-1 Additional Funding Expenses that rank equally with or are payable in priority to the payments of principal on the Commercial Paper; and
(iii) the gross proceeds to be received by the Trust from the creation and issuance of the additional Series 1997-1 Notes on such day,
all as determined on the basis that such day was for the purpose of such calculation a Determination Day;
“Note Agent” shall mean, in respect of the Liquidity Notes, the Indenture Trustee, and in respect of the Subordinated Notes, the Indenture Trustee or such other Person designated in the indenture supplemental relating to the original creation and issuance of the Subordinated Notes as the “Note Agent” for such Notes;
“Payment Date” shall mean:
(a) in respect of a Commercial Paper Note:
(i) prior to the Amortization Commencement Day, the Maturity Date and each Business Day thereafter until payment of all amounts owing under the Commercial Paper Note has been made;
(ii) subject to clause (iii) below, from and including the Amortization Commencement Day and until payment of all amounts owing under the Commercial Paper Note has been made, each Business Day during such period; and
(iii) subject to Section 7.2(3) of the Indenture and Section 7.1(1), following a Declaration of Acceleration, from and after the Declaration of Acceleration and until payment of all amounts owing under the Commercial Paper Note has been made, each Business Day during such period;
(b) in respect of a Liquidity Note:
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(i) the date or dates specified in the related Series Liquidity Agreement on which the payment of an amount owing under the Liquidity Note is required to be made or, if such date is not a Business Day, the next succeeding Business Day and if such amount is not paid in full on such date or dates, each Business Day thereafter until payment of all such amounts owing under the Liquidity Note has been made; and
(ii) each Business Day on which the Trust elects in accordance with the terms of the related Series Liquidity Agreement to repay all or a portion of the amount owing under the Liquidity Note;
(c) in respect of a Subordinated Note:
(i) prior to the Amortization Commencement Day, the date or dates specified in the Subordinated Note on which the payment of an amount, whether on account of principal, interest or otherwise, is required to be made or, if such date is not a Business Day, the next succeeding Business Day;
(ii) subject to clause (iii) below, the date or dates specified in the indenture supplemental referred to in Section 2.1(3)(a) on which payment is required to be made after the Amortization Commencement Day occurs; and
(iii) subject to Section 7.2(3) of the Indenture and Section 7.1(1), following a Declaration of Acceleration, from and after the Declaration of Acceleration to and including the applicable Series Termination Date, each Business Day during such period; and
(d) in respect of an Obligation relating to the Series 1997-1 Notes, or any of them, the date or dates on which payment therefor under the document under which such Obligation is incurred is required to be made or, if such date is not a Business Day, the next succeeding Business Day;
“Rating Agency” shall mean, at any particular time and with respect to the Commercial Paper, DBRS, Fitch and any other credit rating agency selected from time to time by the Administrator to provide a rating, and which, in each case, is then providing a rating, for the Commercial Paper;
“Separated Ownership Interest” shall have the meaning ascribed thereto in the Series 1997-1 Purchase Agreement;
“Series Allocable Percentage” shall mean, on a day in respect of the Series 1997-1 Notes, a fraction expressed as a percentage, the numerator of which is the Invested Amount of the Series 1997-1 Ownership Interest on the Determination Day immediately preceding such day (after all calculations, adjustments, allocations and distributions required to be made on such Determination Day have been made) and the denominator of which is equal to the sum of the Invested Amounts of each Series on such Determination Day which are owned by the Trust and, if such term is used in relation to a period of days, shall mean the percentage so determined for and in respect of the last day of such period;
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“Series Amendment” shall have the meaning specified in Section 8.1(1);
“Series Issuance Date” shall mean, in respect of the Commercial Paper, March 10, 1997 and, in respect of the Subordinated Notes, the initial date upon which a Subordinated Note is created, issued, certified and delivered pursuant to the Indenture and this Series Supplement;
“Series Liquidity Agreement” shall mean an agreement between the Trust and one or more financial institutions or other Persons, providing for one or more facilities to the Trust in relation to funding the repurchase, redemption, payment or repayment on maturity of the Commercial Paper, and any other document executed and delivered thereunder or pursuant thereto by the Trust to one or more Liquidity Lenders under such Series Liquidity Agreement, or their agent, if any, as each may be amended, supplemented, modified, restated or replaced from time to time;
“Series 1997-1 Additional Funding Expenses” shall mean, in respect of a period of days, the Additional Funding Expenses for such period specified in relation to the Series 1997-1 Ownership Interest in the Series 1997-1 Purchase Agreement;
“Series 1997-1 IPA Agreement” shall mean, in respect of the Commercial Paper, the registrar and issuing, certification, transfer and paying agency agreement dated as of March 10, 1997 between the Trust, the Indenture Trustee and the Commercial Paper Note Agent, as it may be amended, supplemented, modified or restated from time to time or such other agreement as may be entered into from time to time in replacement thereof;
“Series 1997-1 Noteholders” shall mean the Holders of the Series 1997-1 Notes;
“Series 1997-1 Notes” shall mean, collectively, the Commercial Paper, the Liquidity Notes and the Subordinated Notes;
“Series 1997-1 Ownership Interest” shall mean the Ownership Interest created and sold pursuant to the Series 1997-1 Purchase Agreement;
“Series 1997-1 Purchase Agreement” shall mean the amended and restated Series 1997-1 purchase agreement dated as of the date hereof between CTB, the Custodian and the Trust, specified as the “Series 1997-1 Purchase Agreement”, as it may be further amended, supplemented, modified or restated from time to time to the extent permitted by the Indenture and this Series Supplement;
“Series 1997-1 Supplement” shall have the meaning specified therefor in the recitals hereto;
“Series Termination Date” shall have the meaning specified therefor in the indenture supplemental referred to in Section 2.1(3)(a);
“Subordinated Note” shall mean any one of the Class of Series 1997-1 Notes evidenced by one or more certificates created, issued and executed by the Trust and certified and delivered by the applicable Note Agent, from time to time pursuant to the Indenture and this
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Series Supplement, substantially in the form set out in any indenture supplemental to this Series Supplement, and “Subordinated Notes” shall mean all such Notes;
“Subordinated Note Rate” shall mean, in respect of a Subordinated Note, a Note Rate equal to the rate of interest specified therein;
“this Series Supplement” shall mean this Series 1997-1 supplement as originally executed, including the Exhibits hereto, as it may be amended, supplemented, modified or restated from time to time, and the expressions “hereto”, “herein”, “hereby”, “hereunder”, and similar expressions refer to this Series Supplement and not to any particular Article, Section, other portion hereof or Exhibit hereto or, except if expressly stated to the contrary, the Indenture; and
“Yield to Maturity” shall mean, at any time with respect to a Discount Note, a percentage rate equal to
(MA IP) IP x
365 OT x 100%
where:
MA = the amount stated to be payable on the Maturity Date of the Discount Note
IP = the Issue Price of the Discount Note
OT = the original term of the Discount Note expressed in days, including the day on which the Discount Note was created and issued but not including its Maturity Date.
Section 1.2 Conflict Between Series Supplement and Indenture. If any term or provision contained herein shall conflict or be inconsistent with any term or provision of the Indenture, the terms and provisions of this Series Supplement shall govern; provided, however, that the terms and provisions of this Series Supplement may modify or amend the terms of the Indenture solely as applied to the Series 1997-1 Notes.
Section 1.3 Interpretation Provisions in Indenture. This Series Supplement shall, unless the context otherwise requires, be subject to the interpretation provisions contained in Article 1 of the Indenture.
Section 1.4 Exhibits. The following Exhibits referred to herein and annexed hereto are incorporated herein by reference and are deemed to be a part hereof:
Exhibit A-1 Form of Discount Commercial Paper Note
Exhibit A-2 Form of Interest Bearing Commercial Paper Note
Exhibit B Form of Liquidity Note
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Exhibit C Identification of Accumulations Account
Section 1.5 Meaning of “aggregate unpaid principal amount”. Any reference in this Series Supplement or the Indenture to the aggregate unpaid principal amount of the Series 1997-1 Notes, the Commercial Paper, the Liquidity Notes or the Subordinated Notes, as applicable, as of a specified date shall mean:
(a) with respect to the Commercial Paper Notes then outstanding that are not Discount Notes, the sum of the dollar amount indicated on the face of each such Commercial Paper Notes less any payments of principal made to the Holders of such Commercial Paper Notes prior to such specified date;
(b) with respect to the Discount Notes then outstanding, the sum of the Issue Price of such Discount Notes less any payments on account of the Issue Price made to the Holders of such Discount Notes prior to such specified date;
(c) with respect to the Liquidity Notes then outstanding, the sum of the dollar amounts endorsed as required by Section 2.4(4) on the grid attached to each such Liquidity Notes on such specified date;
(d) with respect to the Subordinated Notes then outstanding, the sum of the dollar amount indicated on the face of each such Subordinated Notes, less any payments of principal made to the Holders of such Subordinated Notes prior to such specified date; and
(e) with respect to the Series 1997-1 Notes then outstanding, the sum of the amounts determined in accordance with Sections 1.5(a), (b), (c) and (d) on such specified date.
Section 1.6 References to Certain Terms in Indenture. This Series Supplement is the “Supplement” that relates to the Series 1997-1 Notes, the Series 1997-1 Purchase Agreement is the “Purchase Agreement” that relates to the Series 1997-1 Notes, the Series 1997-1 Ownership Interest is the “Series” that relates to the Series 1997-1 Notes, the Commercial Paper Note Agent is the “Note Agent” that relates to the Commercial Paper, the Series 1997-1 IPA Agreement is the “Issuing and Paying Agency Agreement” that relates to the Commercial Paper, the Indenture Trustee is the “Note Agent” that relates to the Liquidity Notes and, for greater certainty, each of the Credit Enhancement Agreements, the Hedging Agreements and the Series Liquidity Agreements is a Trust Document that relates to the Series 1997-1 Notes.
Section 1.7 Discontinuance and Changes in Designation of Ratings. In applying any definition or other term or provision hereof which contemplates a specific rating of a Rating Agency at a time, (a) each Rating Agency specified will include any successor thereof at the time (whether as a result of a change in name, an amalgamation, merger or other reorganization, or otherwise), (b) if a specified Rating Agency and any successor ceases to exist, the reference to such Rating Agency and its ratings shall not be applicable, (c) if a specified Rating Agency changes the designation of its debt rating categories, the debt rating categories specified will refer to each debt rating category of the Rating Agency at the time which can reasonably be determined to be equivalent to the specified rating categories of the Rating Agency and (d) if
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another credit rating agency is selected by the Administrator, the reference to a debt rating category shall, in respect of such additional credit rating agency, be deemed to include a reference to the equivalent rating category of such additional credit rating agency.
ARTICLE 2 CREATION AND ISSUANCE OF THE SERIES 1997-1 NOTES
Section 2.1 Authorization of Creation and Issuance of Series 1997-1 Notes.
(1) The Trust hereby authorizes the creation and issuance of Commercial Paper from time to time on and after the Series Issuance Date therefor, subject to satisfaction of the applicable conditions precedent set forth in Section 3.1(2) of the Indenture and Section 2.3. The Commercial Paper shall collectively constitute a Class of Series 1997-1 Notes for all purposes of the Indenture.
(2) The Trust hereby authorizes the creation and issuance of Liquidity Notes from time to time on and after the execution and delivery of a Series Liquidity Agreement, subject to satisfaction of the applicable conditions precedent set forth in Section 2.5. The Liquidity Notes shall collectively constitute a Class of Series 1997-1 Notes for all purposes of the Indenture.
(3) The Trust hereby authorizes the creation and issuance of Subordinated Notes from time to time on and after the applicable Series Issuance Date, subject to (a) the execution and delivery by the Trust to the Indenture Trustee of an indenture supplemental to this Series Supplement for the purpose of establishing Principal Terms thereof, including matters pertaining to the Adjustment Payment, and (b) satisfaction of the applicable conditions precedent set forth in Section 2.7. The Subordinated Notes shall collectively constitute a Class of Series 1997-1 Notes for all purposes of the Indenture. The Indenture Trustee shall execute and deliver the indenture supplemental referred to in this Section pursuant to Section 8.1(1)(i).
(4) The Commercial Paper, the Liquidity Notes and the Subordinated Notes are hereby designated as the “Series 1997-1 Notes”.
Section 2.2 Certain Principal Terms of the Commercial Paper.
(1) The Commercial Paper is hereby designated as the “Asset-Backed Commercial Paper Notes, Series 1997-1”.
(2) The Commercial Paper shall be denominated in Canadian Dollars and may be in the English language or in both the English and the French languages.
(3) Each Commercial Paper Note shall be dated the date of creation and issuance thereof and the Maturity Date thereof shall be a Business Day not later than 364 days following the date of creation and issuance thereof.
(4) The Commercial Paper shall be denominated in integral multiples of $1,000 and shall not be created and issued to any Person in amounts of less than $50,000; provided, however, that there may be one Commercial Paper Note created and issued in an aggregate unpaid principal amount of less than $50,000 and in other than an integral multiple of $1,000.
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(5) The aggregate unpaid principal amount of a Commercial Paper Note shall be payable in accordance with Articles 5 and 6; provided, however, that if, on or prior to the date that is 364 days after the date of the creation and issuance of the Commercial Paper Note, the aggregate unpaid principal amount of the Commercial Paper Note has not been paid in full, then the aggregate unpaid principal amount of the Commercial Paper Note (together with accrued and unpaid interest thereon, the Accrued Note Liability thereon and any other amounts owing thereunder) shall become immediately due and payable.
(6) Interest on Commercial Paper shall accrue:
(a) in the case of a Commercial Paper Note that is not a Discount Note, on the aggregate unpaid principal amount of such Commercial Paper Note, together with interest on interest accruing but not paid on a Payment Date, as well as after as before default and judgment, from the date such Note is created and issued until paid in full, at an annual rate of interest equal to the applicable Commercial Paper Note Rate; and
(b) in the case of a Commercial Paper Note that is a Discount Note, after non-payment on a Payment Date, on the aggregate unpaid principal amount of such Commercial Paper Note and the Accrued Note Liability thereon, together (without duplication) with interest on interest accruing but not paid on a Payment Date, as well as after as before judgment, from the date of non-payment until paid in full, at an annual rate of interest equal to the applicable Acceleration Rate.
(7) Interest on the Commercial Paper shall be payable in arrears on each Payment Date in accordance with Articles 5 and 6.
(8) In addition to rights of recourse of the Series Specific Creditors with respect to the Series 1997-1 Notes and notwithstanding anything contained in the Indenture or this Series Supplement to the contrary, the Holders of Commercial Paper shall have non-exclusive recourse for amounts owing under the Commercial Paper to any other property or asset of the Trust that is not expressly and exclusively allocated and payable in accordance with the terms of the Pooling and Servicing Agreement, any Purchase Agreement (other than the Series 1997-1 Purchase Agreement), the Indenture (for greater certainty, the Proceeds referred to in Section 7.3(3) of the Indenture shall be deemed to be expressly and exclusively allocated and payable for the purposes of this Section) or any Supplement (other than this Series Supplement) in favour of Series Specific Creditors with respect to any other present or future Series or Class of such other Series.
(9) The Commercial Paper and the certificate of the Commercial Paper Note Agent to be endorsed thereon shall be substantially in the forms of Exhibits A-1 or A-2, with such appropriate insertions, omissions, substitutions and other variations as may be approved by the Trust and the Commercial Paper Note Agent. The certificate evidencing a Commercial Paper Note shall have indicated thereon, among other things, the date of creation and issuance thereof, the Maturity Date thereof, the place of payment thereof, the currency thereof, the Note Rate thereof (in the case of interest bearing Commercial Paper) and the name of the payee thereof or a notation that the Commercial Paper Note is payable to the bearer thereof, all as the Trust or its
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duly appointed agent may instruct the Commercial Paper Note Agent from time to time in accordance with the Series 1997-1 IPA Agreement.
(10) The Commercial Paper created and issued from time to time shall be in registered or bearer form and shall be either Discount Notes or interest bearing Notes, as the Trust or its duly appointed agent may instruct the Commercial Paper Note Agent from time to time in accordance with the Series 1997-1 IPA Agreement.
(11) None of the Commercial Paper shall be held through the Book-Entry System, unless and until the Trust has instructed the Commercial Paper Note Agent in writing to do so.
(12) The Commercial Paper Note Agent is hereby designated as the Note Agent for the Commercial Paper.
Section 2.3 Additional Conditions Precedent for the Issuance of Commercial Paper.
(1) In addition to the satisfaction of the conditions set forth in Section 3.1(2) of the Indenture, the obligation of the Commercial Paper Note Agent to certify and deliver the Commercial Paper on the Series Issuance Date therefor was subject to satisfaction on or prior to such Series Issuance Date of the following conditions that are relevant on the date hereof:
(a) without limiting the generality of Section 3.1(2)(c) of the Indenture, the Trust shall have delivered to the Indenture Trustee original copies of the Series 1997-1 Purchase Agreement, the Series 1997-1 IPA Agreement and a Series Liquidity Agreement, in each case executed by all the parties thereto, other than, if applicable, the Indenture Trustee;
(b) the Trust shall have delivered to the Indenture Trustee evidence that the Commercial Paper shall, upon its creation and issuance on the Series Issuance Date, receive from DBRS a rating of not less than R-1 (high);
(c) the Trust shall have delivered to the Commercial Paper Note Agent a Written Order in respect of the Commercial Paper executed by the Trust and authorizing and directing the certification and delivery of such Commercial Paper by the Commercial Paper Note Agent; and
(d) the Trust shall have delivered to the Indenture Trustee a Certificate of the Trust dated such Series Issuance Date, stating that, as at such date, so far as is known to the Responsible Officer executing such certificate, there was compliance with each of the following conditions:
(i) the Maturity Date of any such Commercial Paper shall not extend beyond the then current Expiry Date under and as defined in a Series Liquidity Agreement and the aggregate amount of unutilized commitments of the Liquidity Lenders under such Series Liquidity Agreement in favour of the Trust shall equal at least 100% of the sum of the aggregate unpaid principal amount of such Commercial Paper created and issued on such date, plus all interest thereon to the applicable Maturity Date of such
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Commercial Paper or, in the case of Discount Notes, the Accrued Note Liability thereon to the applicable Maturity Date thereof; and
(ii) after giving effect to (x) the creation and issuance of such Commercial Paper, the Liquidity Notes and the Subordinated Notes, if any, on such date and (y) the purchase of the Series 1997-1 Ownership Interest to be funded out of the proceeds from the creation, issuance and sale of such Series 1997-1 Notes, the Net Asset Value shall not be negative.
(2) In addition to the satisfaction of the conditions set forth in Section 3.1(3) of the Indenture in respect of each additional creation and issuance of Commercial Paper Notes on a date after the applicable Series Issuance Date, the obligation of the Commercial Paper Note Agent to certify and deliver such additional Commercial Paper Notes is subject to compliance, as at the date of such additional creation and issuance of the Commercial Paper Notes, with each of the following conditions:
(a) the Maturity Date of any such Commercial Paper Note shall not extend beyond the latest of the then current Expiry Dates under and as defined in the Series Liquidity Agreements then in effect and the aggregate amount of the unutilized commitments of Liquidity Lenders under all Series Liquidity Agreements in favour of the Trust shall equal at least 100% of the sum of the aggregate unpaid principal amount of Commercial Paper then outstanding, plus the aggregate unpaid principal amount of all Commercial Paper Notes to be created and issued on such date plus in each case all interest thereon to the applicable Maturity Date of such Commercial Paper or, in the case of Discount Notes, the Accrued Note Liability thereon to the applicable Maturity Date thereof;
(b) the Series 1997-1 Ownership Interest shall not be in its Amortization Period; and
(c) after giving effect to (x) the additional creation and issuance of Commercial Paper, the Liquidity Notes, if any, and the Subordinated Notes, if any, on such date, (y) the purchase of an Additional Ownership Interest, if any, to be funded out of the proceeds from the creation, issuance and sale of such Series 1997-1 Notes and (z) the purchase, redemption or repayment of any Series 1997-1 Notes out of the proceeds from the creation, issuance and sale of such Series 1997-1 Notes, the Net Asset Value shall not be negative.
(3) On or prior to each Calculation Day, commencing after the Series Issuance Date for the Commercial Paper, the Trust shall deliver to the Indenture Trustee a Certificate of the Trust, stating that, as of the immediately preceding Determination Day, so far as is known to the Responsible Officer executing such certificate, there was compliance with each of the conditions set forth in Section 2.3(2) herein and Section 3.1(2)(i) of the Indenture, and the delivery of such certificate shall, absent actual knowledge of the Indenture Trustee to the contrary, constitute compliance with such conditions for the period ending upon the date the next such certificate is to be delivered; provided, however, that where such certificate cannot be delivered because of existing circumstances, which circumstances are subsequently changed such that such a
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certificate may then be delivered, a Certificate of the Trust may be delivered at any time in order to reinstate the ability of the Trust to create and issue additional Commercial Paper.
Section 2.4 Certain Principal Terms of the Liquidity Notes.
(1) The Liquidity Notes are hereby designated as the “Liquidity Notes, Series 1997-1”.
(2) The Liquidity Notes shall be denominated in Canadian Dollars and may be in the English language or in both the English and the French languages.
(3) The aggregate unpaid principal amount of the Liquidity Notes shall be payable in accordance with, and to the extent provided under, Articles 5 and 6.
(4) The Trust hereby irrevocably authorizes each Liquidity Lender to endorse on the grid attached to the Liquidity Note of each such Liquidity Lender, or on a further grid attached by each such Liquidity Lender to such Liquidity Note, the principal amount of all advances made available to the Trust from time to time in accordance with the related Series Liquidity Agreement and all payments made from time to time by the Trust in respect thereof. The Trust agrees that a Liquidity Note and the endorsements made on the grid attached to such Liquidity Note by the applicable Liquidity Lender in accordance with this Section 2.4(4) shall constitute, in the absence of manifest error, prima facie evidence of the aggregate unpaid principal amount of the obligations of the Trust to such Liquidity Lender in respect of advances made to the Trust in accordance with the related Series Liquidity Agreement. After request by the Trust, a Liquidity Lender shall promptly advise the Trust of the endorsements made on the grid attached to such Liquidity Lender’s Liquidity Note.
(5) Interest on the Liquidity Note shall accrue in accordance with the related Series Liquidity Agreement.
(6) Interest on the Liquidity Notes shall be payable in arrears on each Payment Date in accordance with Articles 5 and 6.
(7) In addition to rights of recourse of the Series Specific Creditors with respect to the Series 1997-1 Notes and notwithstanding anything contained in the Indenture or this Series Supplement to the contrary, the Liquidity Lenders shall have non-exclusive recourse for amounts owing under the Liquidity Notes to any other property or asset of the Trust that is not expressly and exclusively allocated and payable in accordance with the terms of the Pooling and Servicing Agreement, any Purchase Agreement (other than Series 1997-1 Purchase Agreement), the Indenture (for greater certainty, the Proceeds referred to in Section 7.3(3) of the Indenture shall be deemed to be expressly and exclusively allocated and payable for the purposes of this Section) or any Supplement (other than this Series Supplement) in favour of Series Specific Creditors with respect to any other present or future Series or Class of such other Series.
(8) The Liquidity Notes and the certificate of the applicable Note Agent to be endorsed thereon shall be substantially in the form of Exhibit B, with such appropriate insertions, omissions, substitutions and other variations as may be approved by the Trust.
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(9) The Liquidity Notes created and issued from time to time shall be in registered form.
(10) None of the Liquidity Notes shall be held through the Book-Entry System.
(11) The Indenture Trustee is hereby designated as the Note Agent of the Liquidity Notes.
Section 2.5 Conditions Precedent for the Issuance of Liquidity Notes. The obligation of the applicable Note Agent to certify and deliver one or more Liquidity Notes on a date on which a Series Liquidity Agreement has been executed and delivered or on a date on which a Person has become a party to a Series Liquidity Agreement, is subject to the Trust delivering to such Note Agent a Written Order in respect of such Liquidity Note or Liquidity Notes executed by the Trust and authorizing and directing the certification and delivery of such Liquidity Note or Liquidity Notes by the applicable Note Agent. Upon satisfaction of the above condition, the applicable Note Agent shall certify and deliver such Liquidity Note or Liquidity Notes as provided for in the Indenture.
Section 2.6 Certain Principal Terms of the Subordinated Notes.
(1) The Subordinated Notes shall have such designation as the Trust may determine at the time of the creation and issuance of the first such Note.
(2) The Subordinated Notes shall be denominated in Canadian Dollars and may be in the English language or in both the English and French languages.
(3) The aggregate unpaid principal amount of the Subordinated Notes shall be payable in accordance with, and to the extent provided under, Articles 5 and 6.
(4) Interest shall accrue on the aggregate unpaid principal amount of the Subordinated Notes, together (without limitation) with interest on interest accruing but not paid on a Payment Date, as well after as before default and judgment, from the date such Note had been created and issued until the applicable Series Termination Date, at an annual rate of interest equal to the applicable Subordinated Note Rate.
(5) Interest on the Subordinated Notes shall be payable in arrears on each Payment Date in accordance with, and to the extent provided under, Articles 5 and 6.
Section 2.7 Conditions Precedent for Subordinated Notes.
(1) The obligation of the applicable Note Agent to certify and deliver the Subordinated Notes on the Series Issuance Date therefor is subject to satisfaction of the following conditions on or prior to such Series Issuance Date:
(a) the Trust shall have delivered to the applicable Note Agent, with a copy to the Indenture Trustee, if not the Note Agent, a Written Order in respect of the Subordinated Notes executed by the Trust and authorizing and directing the
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certification and delivery of the Subordinated Notes by the applicable Note Agent;
(b) the Trust shall have delivered to the Indenture Trustee each written document under which it has or will incur an Obligation in respect of the Subordinated Notes, if any, executed by each of the parties thereto, other than, if applicable, the Indenture Trustee;
(c) the Trust shall have delivered to the Indenture Trustee a Certificate of the Trust dated such Series Issuance Date, stating that, as at such date, so far as is known to the Responsible Officer executing such certificate, there was compliance with each of the conditions specified in Section 2.7(1)(f);
(d) the Trust shall have delivered to the Indenture Trustee an Opinion of Counsel to the Trust, stating that all conditions precedent provided for in this Series Supplement relating to the creation, issuance, certification and delivery of such Subordinated Notes have been complied with;
(e) such other conditions as may be specified in the indenture supplemental relating to the creation and issuance of such Subordinated Notes; and
(f) compliance, as at such Series Issuance Date, with each of the following conditions:
(i) no event shall have occurred and be continuing which would constitute a Default or an Event of Default nor shall the creation and issuance of such Subordinated Notes constitute or result in the occurrence of a Default or an Event of Default;
(ii) the representations and warranties set forth in Section 6.1 of the Indenture shall be true and correct in all material respects; and
(iii) after giving effect to (x) the creation and issuance of such Subordinated Notes and the Commercial Paper, if any, on such date, (y) the purchase of an Additional Ownership Interest, if any, to be funded out of the proceeds from the creation, issuance and sale of such Series 1997-1 Notes and (z) the purchase, redemption or repayment of any Series 1997-1 Notes out of the proceeds from the creation, issuance and sale of such Series 1997-1 Notes, the Net Asset Value shall not be negative.
Upon satisfaction of the above conditions, (i) the Indenture Trustee shall execute and deliver each document delivered to the Indenture Trustee pursuant to this Section 2.7(1) and for which the execution thereof by the Indenture Trustee is contemplated and (ii) the applicable Note Agent shall certify and deliver such Subordinated Notes as provided for in the Indenture.
(2) For each additional creation and issuance of Subordinated Notes on a day after the applicable Series Issuance Date, other than Subordinated Notes created, issued, certified and delivered upon registration of a transfer of, or an exchange for, or in lieu of, other Subordinated
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Notes pursuant to the Indenture, the obligation of the applicable Note Agent to certify and deliver from time to time additional Subordinated Notes is subject to satisfaction of the following conditions on or prior to such day:
(a) the Trust shall have delivered to the Indenture Trustee a Certificate of the Trust dated the date of the additional creation and issuance of Subordinated Notes, stating that, as of such date, so far as is known to the Responsible Officer executing such certificate, there was compliance with each of the conditions set forth in Section 2.7(1)(f); and
(b) such other conditions as may be specified in the indenture supplemental relating to the original creation and issuance of the Subordinated Notes.
Upon satisfaction of the above condition, (i) the Indenture Trustee shall execute and deliver each document, if any, delivered to the Indenture Trustee pursuant to this Section 2.7(2)(b) and for which the execution thereof by the Indenture Trustee is contemplated and (ii) the applicable Note Agent shall certify and deliver the additional Subordinated Notes as provided for in the Indenture.
Section 2.8 Protection of Commercial Paper Note Agent.
(1) In the exercise of the Commercial Paper Note Agent’s obligation to certify and deliver the Commercial Paper as provided for in the Indenture and this Series Supplement or any other duty under the Series 1997-1 IPA Agreement, the Commercial Paper Note Agent may act and rely, and shall be protected in acting and relying in good faith, on the statement or opinion contained in any statutory declaration, opinion, Opinion of Counsel, report, direction, order, certificate, Certificate of the Trust or other writing, whether obtained by the Commercial Paper Note Agent, the Indenture Trustee or the Trust, and may, if acting in good faith, rely as to the truth of the statements made therein and the accuracy of the opinions expressed therein. Notwithstanding the foregoing, if the Trust instructs the Commercial Paper Note Agent on any day after the Series Issuance Date for the Commercial Paper to certify and deliver additional Commercial Paper Notes, the Commercial Paper Note Agent shall not be required to investigate as to whether any of the Commercial Paper Notes to be created and issued on such date may be properly certified and delivered in accordance with the Indenture and this Series Supplement. The Commercial Paper Note Agent shall be entitled to presume that all of the conditions precedent to the certification and delivery of the Commercial Paper on a date after the Series Issuance Date therefor have been satisfied and that the Trust has delivered to the Indenture Trustee the Certificate of the Trust required by the Indenture and this Series Supplement to be delivered in connection with the certification and delivery of the Commercial Paper on such date.
(2) The Commercial Paper Note Agent shall not be required to take notice or be deemed to have notice or actual notice of any matter under the Indenture, this Series Supplement or the Series 1997-1 IPA Agreement, unless the Commercial Paper Note Agent shall have received from the Trust or the Indenture Trustee written notice stating the matter in respect of which the Commercial Paper Note Agent should have notice or actual knowledge.
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ARTICLE 3 ADDITIONAL COVENANTS OF TRUST; PERMITTED ACTIVITIES; REMEDIES
Section 3.1 Covenants. The Trust hereby covenants in favour of the Indenture Trustee with respect to the Series 1997-1 Notes that:
(a) Amortization Event. If an Amortization Event under Section 8.1(a), 8.1(b) or 8.1(d) of the Series 1997-1 Purchase Agreement occurs and is continuing, then the Trust shall deliver to CTB, each Rating Agency then rating the Commercial Paper and any Successor Servicer the notice referred to in Section 8.2(1) of the Series 1997-1 Purchase Agreement, unless the Trust is satisfied that such Amortization Event occurred as a result of inadvertence or error on the part of CTB or a Successor Servicer and is capable of timely rectification without having a material adverse effect on the Holders of Series 1997-1 Notes.
(b) Servicer Termination Event. If a Servicer Termination Event occurs and is continuing, then the Trust shall not exercise any of its voting rights as the Co-Owner of the Series 1997-1 Ownership Interest in relation to the replacement of the Servicer under the Pooling and Servicing Agreement resulting from the occurrence and continuance of such Servicer Termination Event, except in accordance with (i) a Noteholder Direction from Holders of the Series 1997-1 Notes and (ii) if the Liquidity Lenders under the Series Liquidity Agreements then in effect would continue to be obligated to make advances in accordance therewith following such Servicer Termination Event, a Liquidity Lender Direction from the Liquidity Lenders under each such Series Liquidity Agreement.
(c) Mandatory Provision in Documents under which Obligations are Incurred. Each document to which the Trust is a party under which the Trust incurs an Obligation in respect of the Series 1997-1 Notes, or any Class thereof, shall contain an express acknowledgement and agreement from each of the other parties thereto in favour of the Trust and the Indenture Trustee to the effect that (except as provided otherwise in this Series Supplement and except, in the case of the Series 1997-1 IPA Agreement, as expressly provided otherwise therein): (i) the amount that the Trust is obligated to pay to such other parties under such document and the amount that each of such other parties are entitled to receive thereunder, are expressly limited to the amount of Available Funds required to be applied by the Trust in accordance with Article 5 of this Series Supplement; (ii) recourse for such amount shall be limited to the Series 1997-1 Ownership Interest and amounts on deposit in the Accumulations Account and all Proceeds therefrom including investments and earnings therein (and including, for greater certainty, recourse to the Servicer to the extent that Collections and Miscellaneous Deposits otherwise required to be deposited into the Accumulations Account are not so deposited as permitted under Section 6.3(2) of the Pooling and Servicing Agreement); (iii) the acceleration of any Obligation under such document may not be made until a Declaration of Acceleration is made by the Indenture Trustee, provided that amounts becoming due under a Series Liquidity Agreement upon the expiration or
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other termination of the obligation of the Liquidity Lenders thereunder to make advances to the Trust in accordance therewith shall not be considered an acceleration for the purposes of this Section; (iv) each of such other parties shall be bound by the priority arrangements provided for in the Indenture and shall not, to the extent permitted by applicable law, exercise any rights or remedies in, to or under the Collateral, whether granted or available to such party at law, under statute, in equity, under such document or otherwise, except as and to the extent permitted under the Indenture and this Series Supplement; (v) if, notwithstanding the foregoing, any Proceeds derived from the Collateral other than in accordance with the Indenture and this Series Supplement shall be received at any time by any such party, then such Proceeds shall be held by such party in trust for the Indenture Trustee and the other Series Specific Creditors with respect to the applicable Series to the extent of their individual entitlements as provided for in the Indenture and the related Supplement and any such party shall forthwith remit to the Indenture Trustee such Proceeds to be paid by the Indenture Trustee in accordance with the related Supplement; (vi) each of such other parties consent to the assignment by way of security by the Trust in favour of the Indenture Trustee of all of the Trust’s rights and benefits under such document; (vii) except where the Indenture Trustee is a party to such document, any acknowledgements, agreements, authorizations, directions, consents and other obligations set forth in such document of each such other party in favour of the Indenture Trustee are held by the Trust in trust for the Indenture Trustee and all other Series Specific Creditors with respect to any and all Series; and (viii) each such other party irrevocably authorizes and directs the Indenture Trustee on its behalf to take such action (including the execution and delivery of deeds of subordination) as may be necessary or appropriate to further assure all of the foregoing (including the priority arrangements provided for in the Indenture and this Series Supplement and the provisions herein and therein regarding application of payments) and hereby appoints the Indenture Trustee as its agent for any and all such purposes.
(d) Location of Title Documents. All title documents and other evidence of ownership that the Trust is required to possess in accordance with Section 4.1(2)(b) will be located at all times in the Province of Ontario.
(e) Possession and Use of Certain Property. Except as otherwise required by the Pooling and Servicing Agreement, the Series 1997-1 Purchase Agreement or the Series 1997-1 IPA Agreement; the Trust will deposit to the Accumulations Account all proceeds received by it in connection with the creation and issuance of any of the Series 1997-1 Notes, including all amounts drawn in accordance with any Series Liquidity Agreement, and any payments received pursuant to any of the Hedging Agreements and Credit Enhancement Agreements, provided that if such proceeds, or a part thereof, are being applied by the Trust on the Series Issuance Date for the Commercial Paper to purchase the Series 1997-1 Ownership Interest or thereafter to purchase an Additional Ownership Interest, then such proceeds, or part thereof, need not be deposited into the Accumulations Account, but rather shall be paid to or to the order of the Seller or Sellers of the Series 1997-1 Ownership Interest or the Additional Ownership Interest.
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(f) Series Liquidity Agreements. Except if the Rating Agency Condition is otherwise satisfied, the Trust shall establish and maintain one or more Series Liquidity Agreements as follows:
(i) at the time of entering into a Series Liquidity Agreement with the Trust, each Liquidity Lender thereunder shall have a credit rating of not less than R-1 (low) by DBRS and F2 by Fitch;
(ii) subject to early termination or expiry of the obligations of the Liquidity Lenders and satisfaction of applicable conditions precedent, the Series Liquidity Agreements shall collectively entitle the Trust to borrow sufficient amounts to enable it to meet its obligations under the Commercial Paper then outstanding in circumstances where market conditions or circumstances arise which would result in the Trust being unable to issue and sell Commercial Paper in order to fund the timely payment of amounts payable under maturing Commercial Paper; and
(iii) no Series Liquidity Agreement shall provide for early termination or expiry of the obligations of the Liquidity Lenders to lend in accordance therewith on or prior to the latest Maturity Date of any Commercial Paper then outstanding or shall impose conditions precedent to any obligations to lend thereunder, except:
(A) upon or as a result of the occurrence of one or more Amortization Events relating to the Series 1997-1 Ownership Interest; or
(B) upon or as a result of any other circumstances substantially contemplated in one or more pre-existing Series Liquidity Agreements,
if such termination or expiry or condition precedent would result in the Trust being unable to borrow sufficient amounts in accordance with the Series Liquidity Agreements then in effect to enable the Trust to meet its payment obligations under Commercial Paper then outstanding in the circumstances contemplated under Section 3.1(1)(f)(ii).
The Trust shall utilize the borrowing facilities available under the aforementioned Series Liquidity Agreements in each circumstance where a failure to do so would result in a material delay in the repayment of the amounts owing under Commercial Paper then outstanding on the Maturity Date thereof.
(g) Issuing and Paying Agency Agreement. Following any termination of the Series 1997-1 IPA Agreement or resignation of the Commercial Paper Note Agent and upon the written direction of the Indenture Trustee, the Trust will use reasonable efforts to appoint a successor to the Commercial Paper Note Agent to perform the obligations of the Commercial Paper Note Agent under the Series 1997-1 IPA Agreement or will consent to the appointment by the Indenture Trustee of any successor Commercial Paper Note Agent or to an application by
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the Indenture Trustee to a court of competent jurisdiction to make such appointment and enter into an Issuing and Paying Agency Agreement with respect to the Commercial Paper with such successor Commercial Paper Note Agent, substantially in the form of the Series 1997-1 IPA Agreement (subject to such amendments as may be consented to by the Indenture Trustee) and will execute and deliver all supplemental indentures and amendments hereto and all instruments of further assurance and other instruments and will take other and further action as the Indenture Trustee may consider necessary or advisable to assign and render subject to the Indenture and this Series Supplement, such Issuing and Paying Agency Agreement with any successor Commercial Paper Note Agent.
(h) Notice of Certain Events. The Trust will promptly notify the Indenture Trustee and the Liquidity Lenders under the Series Liquidity Agreements then in effect, or their agent, as required by such applicable Series Liquidity Agreement in writing (i) upon becoming aware of any default of the Seller, the Custodian or the Servicer under the Pooling and Servicing Agreement or any Purchase Agreement or any other event which with or without the delivery of notice or the passage of time or both, would constitute an Amortization Event or a Servicer Termination Event and will, upon written direction to do so by the Indenture Trustee and, if at the time such Liquidity Lenders or their agent, as applicable, is so notified the Liquidity Lenders under the Series Liquidity Agreements then in effect would continue to be obligated to make advances to the Trust in accordance therewith, the Liquidity Lenders by way of a Liquidity Lender Direction from the Liquidity Lenders under any such Series Liquidity Agreements, take any action which the Trust or the Custodian is entitled to take under the Pooling and Servicing Agreement or the Series 1997-1 Purchase Agreement as a result of such events and (ii) upon becoming aware of any default of the Administrator under the Administration Agreement and will specify in such notice, the action, if any, the Trust is taking with respect to such defaults and will, upon written direction to do so by the Indenture Trustee and, if at the time the Liquidity Lenders or their agent, as applicable, is so notified the Liquidity Lenders under the Series Liquidity Agreements then in effect would continue to be obligated to make advances to the Trust in accordance therewith, the Liquidity Lenders by way of a Liquidity Lender Direction from the Liquidity Lenders under any such Series Liquidity Agreements, take any action which the Trust is entitled to take under the Administration Agreement as a result of such default.
(i) Notice of Commercial Paper Note Agent. The Trust will promptly notify the Commercial Paper Note Agent in writing upon becoming aware of the occurrence of an Amortization Commencement Day or a Declaration of Acceleration.
Section 3.2 Permitted Dispositions and Activities.
(1) The Trust will be permitted (a) to execute and deliver one or more Dealer Agreements with respect to any and all of (i) the distribution of the Commercial Paper created and issued on the Series Issuance Date therefor, (ii) the creation and issuance of additional
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Commercial Paper after the Series Issuance Date therefor, and (iii) the creation and issuance from time to time of Subordinated Notes, and in each case all other documents to be executed and delivered thereunder or pursuant thereto, (b) to execute and deliver one or more Series Liquidity Agreements with respect to the Commercial Paper, and, for greater certainty, all other documents to be executed and delivered thereunder or pursuant thereto by the Trust in favour of one or more Liquidity Lenders or their agent, if applicable, (c) to execute and deliver one or more Issuing and Paying Agency Agreements with respect to the Series 1997-1 Notes or a Class of Series 1997-1 Notes, which documents may be in addition to or in replacement of the Series 1997-1 IPA Agreement in effect on the Series Issuance Date for the Commercial Paper, and all other documents to be executed and delivered thereunder or pursuant thereto, (d) to execute and deliver one or more Hedging Agreements in relation to the Series 1997-1 Notes or a Class of Series 1997-1 Notes and, for greater certainty, all other documents to be executed and delivered thereunder or pursuant thereto by the Trust in favour of the Hedging Counterparty thereunder, and (e) to execute and deliver one or more Credit Enhancement Agreements in relation to the Series 1997-1 Notes or a Class of Series 1997-1 Notes and, for greater certainty, all other documents to be executed and delivered thereunder or pursuant thereto by the Trust in favour of the Credit Enhancer thereunder.
(2) The present and future debts, liabilities and obligations of the Trust to any of the Persons under each of the agreements and other documents described in clauses (a), (c), (d) and (e) of Section 3.2(1) shall be an “Obligation” in respect of the Series 1997-1 Notes or a Class of the Series 1997-1 Notes, as the case may be, for the purposes of the Indenture. The present and future debts, liabilities and obligations of the Trust to the Liquidity Lenders, their agent or any of them, under each of the agreements and other documents described in clause (b) of Section 3.2(1), other than for amounts owing by the Trust on account of principal and interest thereon and evidenced by a Liquidity Note, shall be an “Obligation” in respect of the Commercial Paper for the purposes of the Indenture. None of the agreements and other documents described in clauses (a) to (e), inclusive, of Section 3.2(1) shall, for the purposes of Sections 13.1(2)(c) and 13.3(2) of the Indenture, be a document of the type contemplated by clause (h) of the definition of “Obligations” in respect of the Series 1997-1 Notes or a Class of the Series 1997-1 Notes in Section 1.1 of the Indenture. For greater certainty, except as otherwise expressly provided in Article 5, all amounts required to be paid on a Payment Date in respect of such Obligations shall be payable in accordance with, and to the extent provided under, Sections 5.1(g), 5.2(g), 5.3(g) and 5.4(c), as applicable.
(3) Notwithstanding any provision of the Indenture to the contrary, the Trust shall be permitted to sell, free and clear of the security interest granted by the Trust to the Indenture Trustee, either (i) the Series 1997-1 Ownership Interest in connection with a redemption of all of the Commercial Paper then outstanding pursuant to Section 5.8 hereof, or (ii) part of the Series 1997-1 Ownership Interest consisting of Separated Ownership Interests in connection with a redemption pursuant to Section 5.8 of some but not all of the Commercial Paper then outstanding, in each case, if each of the following conditions is satisfied:
(a) the sale is in connection with the redemption of all or part of the Commercial Paper then outstanding;
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(b) the sale is made to enable the Trust to meet its obligations under the Commercial Paper then outstanding in circumstances where market conditions or circumstances arise which would result in the Trust being unable to issue and sell Commercial Paper in order to fund the timely payment of amounts payable under maturing Commercial Paper;
(c) the sale will take place not more than thirty (30) days prior to the Payment Date on which the redemption is to be effected in accordance with Section 5.1;
(d) the proceeds of any such sale together with any other Available Funds will be sufficient to permit the Trust to pay the redemption price in full on the Payment Date on which the redemption is to be effected in accordance with Section 5.1;
(e) immediately upon completion of such sale, such proceeds are deposited directly to the Accumulation Account;
(f) if any Commercial Paper will remain outstanding after the applicable Payment Date, the Invested Amount of the Series 1997-1 Ownership Interest immediately after the separation of the Separated Ownership Interests and their sale will be at least equal to the outstanding principal amount of the Commercial Paper after giving effect to such redemption;
(g) no Amortization Event, or event with the giving of notice or lapse of time or both would result in the occurrence of an Amortization Event, has occurred and the sale of the Separated Ownership Interests will not result in the occurrence of an Amortization Event or event which with the giving of notice or lapse of time or both would result in the occurrence of an Amortization Event;
(h) no Event of Default, or event which the giving of notice or lapse of time or both would result in the occurrence of an Event of Default, has occurred and the sale of the Separated Ownership Interests will not result in the occurrence of an Event of Default or event which with the giving of notice or lapse of time or both would result in the occurrence of an Event of Default;
(i) immediately after giving effect to the sale, the Pool Balance will not be less than the Required Pool Amount;
(j) if any Commercial Paper will remain outstanding after the applicable Payment Date, each of the conditions precedent to the separation of a Separated Ownership Interest provided for in Section 10.3 of the Series 1997-1 Purchase Agreement (other than Section 10.3(i)) shall have been satisfied;
(k) if any Commercial Paper will remain outstanding after such redemption date, the sale of the Separated Ownership Interests is completed on the basis that the Trust provides no representations, warranties or covenants whatsoever with respect to the sold Separated Ownership Interests, other than in respect of ownership of the Separated Ownership Interests and the valid transfer and assignment thereof free and clear of the security interest of the Indenture Trustee, and where recourse in
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respect of any representations, warranties and covenants and any other obligations and liabilities of the Trust under the sale documents is limited in recourse to the Trust’s right, title and interest in the Separated Ownership Interests being sold and providing that upon the completion of such sale, the Trust shall have no other liability or obligations of any kind under the sale transaction except pursuant to a reasonable further assurances clause; and
(l) the Indenture Trustee and the Series 1997-1 Noteholders shall have received an officer’s certificate of the Seller certifying that each of the conditions set out in this Section 3.2(3) have been satisfied.
Section 3.3 Acceleration. Notwithstanding anything contained in Section 7.2(2) of the Indenture to the contrary, if an Event of Default occurs and is continuing and the Indenture Trustee has received notice of such Event of Default in accordance with Section 9.9(1) of the Indenture, then the Indenture Trustee shall declare the Series 1997-1 Notes to be immediately due and payable, by a notice in writing to the Trust, and upon any such declaration, the aggregate unpaid principal amount of the Series 1997-1 Notes (together with any and all accrued and unpaid interest thereon through the date of acceleration, the Accrued Note Liability as at such date and any other amounts owing thereunder) shall, subject to Section 7.2(3) of the Indenture and Section 7.1(1), become immediately due and payable and the Lien Hereof shall immediately become enforceable but only with respect to the Collateral to which the Series 1997-1 Noteholders and the other Series Specific Creditors with respect to the Series 1997-1 Notes have recourse pursuant to the Indenture, as supplemented by this Series Supplement (such declaration by the Indenture Trustee being referred to as a “Declaration of Acceleration”). Upon any such Declaration of Acceleration, amounts owing by the Trust under each document under which an Obligation in respect of the Series 1997-1 Notes has been incurred may also be declared by the Person to whom the Trust has incurred such Obligation to be immediately due and payable if so provided under such document, but, for greater certainty, in no other circumstances; provided, however, that if any such Obligations are accelerated, such acceleration may be rescinded and annulled in accordance with the relevant document. For greater certainty, if by the terms of a Series Liquidity Agreement a Liquidity Lender’s obligation to make advances to the Trust in accordance therewith expires or is otherwise terminated and the amount outstanding to such Liquidity Lender becomes due and payable as a result thereof, such expiry or termination and the resulting coming due of amounts payable to such Liquidity Lender shall not be considered to be an acceleration of such Obligations. Subject to Section 7.2(3) of the Indenture and Section 7.1(1), upon the Indenture Trustee making a Declaration of Acceleration, the Trust shall pay all outstanding principal, interest, Accrued Note Liability and other amounts owing under the Series 1997-1 Notes in accordance with the order of priorities set forth in Section 5.3.
Section 3.4 Waiver of Commencement of Amortization Period. If one or more of the Amortization Events under Sections 8.1(c), (e), (f), (i), (j), (l) and (m) of the Series 1997-1 Purchase Agreement occurs, then the Holders of the Commercial Paper shall be permitted, by way of a Noteholder Direction of the Commercial Paper, to direct the Trust to waive the commencement of the Amortization Period within three (3) Business Days after recognition by the Custodian of such Amortization Events and the Trust shall forthwith comply with such direction; provided, however, that if the Liquidity Lenders under the Series Liquidity Agreements then in effect would continue to be obligated to make advances to the Trust in
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accordance therewith if the Trust waived the commencement of the Amortization Period in accordance with the Noteholder Direction, then the Trust shall not comply with such Noteholder Direction unless the Trust has received, in addition to such Noteholder Direction, a Liquidity Lender Direction from the Liquidity Lenders under each such Series Liquidity Agreements to the same effect as such Noteholder Direction.
Section 3.5 Proceedings by Holders of Commercial Paper. If the amounts owing under a Commercial Paper Note have become immediately due and payable in the circumstances provided in Section 2.2(5), then the Holder of such Commercial Paper Note shall be entitled to institute Proceedings in the Holder’s name against the Trust for payment of such amounts and to enforce any judgment obtained solely against the property to which such Holder has recourse pursuant to Section 4.2 of the Indenture and Section 2.2(8). Any amount received by the Holder of the Commercial Paper Note as a result of such enforcement shall be held by the Holder and dealt with in accordance with the priority arrangements set forth in the Indenture and this Series Supplement.
ARTICLE 4 ACCUMULATIONS ACCOUNT
Section 4.1 Accumulations Account.
(1) The Trust has directed the Custodian to establish in the name of the Trust an Eligible Deposit Account (the “Accumulations Account”), which account shall be identified as the “Accumulations Account for Glacier Credit Card Trust, Series 1997-1”. After the Series Issuance Date, the Trust will maintain the Accumulations Account. Such account and all funds now or at any time or from time to time on deposit therein and all investments made from time to time with such funds shall be separate and segregated from the Trust’s other assets and shall bear a designation clearly indicating that such account, such funds and such investments are subject to the Lien Hereof. If, at any time, the Accumulations Account ceases to be an Eligible Deposit Account, then the Trust (or the Indenture Trustee may, subject to Section 7.2(3) of the Indenture and Section 7.1(1), following a Declaration of Acceleration), within ten (10) Business Days (or such longer period, not to exceed thirty (30) days, as to which each Rating Agency that is then rating the Commercial Paper may indicate in writing would not result in the reduction or withdrawal of its rating of the Commercial Paper), (a) direct the Custodian to establish a substitute Eligible Deposit Account as the Accumulations Account, and (b) transfer all funds and investments then deposited in or invested from such Accumulations Account to such substitute Accumulations Account. From the date any such substitute Eligible Deposit Account is established and all such funds and investments have been transferred in accordance with the Pooling and Servicing Agreement and this Section 4.1(1), such account shall be the Accumulations Account for all purposes hereof, provided that, for greater certainty, the Lien Hereof shall continue in respect of the predecessor account and any funds therein. Exhibit C identifies the Accumulations Account by setting forth the account number of such account, the account designation of such account and the name and address of the financial institution at which such account has been established. If a substitute Accumulations Account is established by the Custodian from time to time pursuant to the Pooling and Servicing Agreement, the Trust shall cause the Custodian to deliver to the Indenture Trustee the relevant information for such
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substitute Accumulations Account in order to permit any party hereto to amend Exhibit C accordingly, without the consent of the other party.
(2) The Trust shall have the right to exercise all rights in connection with the Accumulations Account, including the authority to give to the applicable financial institution at which the Accumulations Account has been established all drafts, demands, withdrawal requests and instructions of every kind and nature with respect to the operation of the Accumulations Account; provided that such drafts, demands, withdrawal requests and instructions shall only be given in accordance with and subject to the provisions of this Series Supplement and the Indenture. Subject to Section 7.2(3) of the Indenture and Section 7.1(1), following a Declaration of Acceleration, the Indenture Trustee may give the Trust and the financial institution at which the Accumulations Account is established a notice in writing terminating the right of the Trust to exercise all rights in connection with the Accumulations Account, including the authority of the Trust to operate the Accumulations Account and to deal with any investments credited to the Accumulations Account or lodged with such financial institution. Prior to a Declaration of Acceleration, the Trust shall (a) direct the Custodian to invest funds on deposit in the Accumulations Account solely in Eligible Investments so that such Eligible Investments will mature on or before the Business Day prior to the Payment Date for which such funds are required for payment and (b) possess all title documents to and other evidence of ownership of all funds from time to time on deposit in, and all Eligible Investments credited to, the Accumulations Account and all Proceeds thereof. After any Declaration of Acceleration and if the Indenture Trustee has given the notice referred to in this Section 4.1(2), the Indenture Trustee shall comply with the requirements applicable to the Custodian in clause (a) of the immediately preceding sentence and shall possess all such title documents and other evidence of ownership. The Trust shall take or cause to be taken all necessary action to ensure that the Indenture Trustee may do any and all of the foregoing on a timely basis. All income or other gain from, and the principal amount of, investments of funds previously deposited in the Accumulations Account shall, when earned or upon their maturity, forthwith be deposited by the Custodian or the Indenture Trustee, as applicable, in the Accumulations Account and shall be held therein pending investment in Eligible Investments or payment in accordance with Article 5. Any charges or expenses associated with such investments may be charged to and netted against the amounts on deposit in the Accumulations Account.
ARTICLE 5 APPLICATION OF MONIES FROM ACCUMULATIONS ACCOUNT
Section 5.1 Payments from Accumulations Account prior to Amortization Commencement Day. On each day that is a Payment Date occurring prior to the Amortization Commencement Day, the Trust shall make the following payments from the Available Funds on such day in the following order of priority:
(a) first, in payment or reimbursement of the following Series 1997-1 Additional Funding Expenses payable on such day in the following order of priority:
(i) to any Person in respect of any legally enforceable obligation which is due and payable by the Trust on such day and which is secured or supported by a Lien on all or part of the Collateral that ranks in priority to the Lien
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Hereof, in an amount equal to the Series Allocable Percentage of the amount due and payable on such day;
(ii) to the Indenture Trustee in respect of an amount equal to the sum of (x) the Series Allocable Percentage of any amount payable on such day