EXHIBIT 4.7 - FORM OF TRUST AGREEMENT
TRUST AGREEMENT
between
DC FUNDING INTERNATIONAL, INC.,
as Transferor,
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of [ ], 2002
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ................................................... 1
Section 1.1. Capitalized Terms ........................................ 1
Section 1.2. Other Definitional Provisions ............................ 1
ARTICLE II ORGANIZATION .................................................. 2
Section 2.1. Name ..................................................... 2
Section 2.2. Office ................................................... 2
Section 2.3. Purpose and Powers ....................................... 2
Section 2.4. Appointment of Owner Trustee ............................. 3
Section 2.5. Capital Contribution of Trust Estate ..................... 3
Section 2.6. Declaration of Trust ..................................... 3
Section 2.7. Title to Trust Property .................................. 4
Section 2.8. Situs of Trust ........................................... 4
Section 2.9. Representations and Warranties of Transferor ............. 4
Section 2.10. Liability of Beneficiaries ............................... 5
ARTICLE III BENEFICIAL INTERESTS .......................................... 5
Section 3.1. Initial Ownership ........................................ 5
Section 3.2. Exchangeable Transferor Certificate ...................... 5
Section 3.3. Form of Exchangeable Transferor Certificate .............. 6
Section 3.4. Restrictions on Transfer; Issuance of
Supplemental Interests ................................... 6
ARTICLE IV ACTIONS BY OWNER TRUSTEE ...................................... 7
Section 4.1. Prior Notice to Transferor with Respect to
Certain Matters .......................................... 7
Section 4.2. Restrictions on Power .................................... 7
ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE ......................... 8
Section 5.1. General Authority ........................................ 8
Section 5.2. General Duties ........................................... 8
Section 5.3. Action Upon Instruction .................................. 8
Section 5.4. No Duties Except as Specified in this
Agreement or in Instructions ............................. 9
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TABLE OF CONTENTS
(continued)
Page
Section 5.5. No Action Except under Transaction Documents or
Instructions ............................................... 10
Section 5.6. Restrictions ............................................... 10
Section 5.7. Tax Returns ................................................ 10
ARTICLE VI CONCERNING OWNER TRUSTEE ............................................ 10
Section 6.1. Acceptance of Trusts and Duties ............................ 10
Section 6.2. Furnishing of Documents .................................... 12
Section 6.3. Representations and Warranties ............................. 12
Section 6.4. Reliance; Advice of Counsel ................................ 13
Section 6.5. Not Acting in Individual Capacity .......................... 13
Section 6.6. Owner Trustee Not Liable for Notes or Receivables .......... 14
Section 6.7. Owner Trustee May Own Notes ................................ 14
ARTICLE VII COMPENSATION OF OWNER TRUSTEE ....................................... 14
Section 7.1. Owner Trustee's Fees and Expenses .......................... 14
Section 7.2. Indemnification ............................................ 15
Section 7.3. Payments to Owner Trustee .................................. 15
ARTICLE VIII TERMINATION OF TRUST AGREEMENT ...................................... 15
Section 8.1. Termination of Trust Agreement ............................. 15
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES .............. 16
Section 9.1. Eligibility Requirements for Owner Trustee ................. 16
Section 9.2. Resignation or Removal of Owner Trustee .................... 16
Section 9.3. Successor Owner Trustee .................................... 17
Section 9.4. Merger or Consolidation of Owner Trustee ................... 18
Section 9.5. Appointment of Co-Trustee or Separate Trustee .............. 18
ARTICLE X MISCELLANEOUS ....................................................... 19
Section 10.1. Supplements and Amendments ................................. 19
Section 10.2. No Legal Title to Trust Estate in Transferor ............... 21
Section 10.3. Limitations on Rights of Others ............................ 21
Section 10.4. Notices .................................................... 22
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TABLE OF CONTENTS
(continued)
Page
Section 10.5. Severability .................................... 22
Section 10.6. Separate Counterparts ........................... 22
Section 10.7. Successors and Assigns .......................... 22
Section 10.8. Non-petition Covenants .......................... 22
Section 10.9. No Recourse ..................................... 23
Section 10.10. Headings ........................................ 23
Section 10.11. GOVERNING LAW ................................... 23
Section 10.12. Integration of Documents ........................ 23
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of [_____], 2002 (this
"Agreement"), between DC FUNDING INTERNATIONAL, INC., a Delaware corporation, as
Transferor, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein are defined in Annex A to the Master Indenture, dated
as of the date hereof, between FNANB Credit Card Master Note Trust and JPMorgan
Chase Bank, as Indenture Trustee.
Section 1.2. Other Definitional Provisions. All terms defined directly
or by reference in this Agreement shall have the defined meanings when used in
any certificate or other document delivered pursuant hereto unless otherwise
defined therein. For purposes of this Agreement and all such certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under GAAP; (b) terms defined in Article 9 of the UCC as in effect in the
State of Delaware and not otherwise defined in this Agreement are used as
defined in that Article; (c) any reference to each Rating Agency shall only
apply to any specific rating agency if such rating agency is then rating any
outstanding Series; (d) references to any amount as on deposit or outstanding on
any particular date means such amount at the close of business on such day; (e)
the words "hereof," "herein" and "hereunder" and words of similar import refer
to this Agreement (or the certificate or other document in which they are used)
as a whole and not to any particular provision of this Agreement (or such
certificate or document); (f) references to any Section, Schedule or Exhibit are
references to Sections, Schedules and Exhibits in or to this Agreement (or the
certificate or other document in which the reference is made), and references to
any paragraph, Section, clause or other subdivision within any Section or
definition refer to such paragraph, subsection, clause or other subdivision of
such Section or definition; (g) the term "including" means "including without
limitation"; (h) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (i) references to any Person include that Person's successors and
assigns; and (j) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
Section 2.1. Name. The trust created hereby shall be known as "FNANB
Credit Card Master Note Trust," in which name the Trust and Owner Trustee on
behalf of the Trust each shall have power and authority and is hereby authorized
and empowered to and may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and ▇▇▇ and be sued. The
Trust's fiscal year shall end on the last day of each February.
Section 2.2. Office. The office of the Trust shall be in care of Owner
Trustee at the Corporate Trust Office or at such other address in the United
States as Owner Trustee may designate by written notice to Transferor and
Indenture Trustee.
Section 2.3. Purpose and Powers. The purpose of the Trust is to engage
in the activities set forth in this Section 2.3. The Trust shall have power and
authority and is hereby authorized and empowered, without the need for further
action on the part of the Trust, and Owner Trustee shall have power and
authority, and is hereby authorized and empowered, in the name and on behalf of
the Trust, to do or cause to be done all acts and things necessary, appropriate
or convenient to cause the Trust, to engage in the activities set forth in this
Section 2.3 as follows:
(i) to execute, deliver and issue the Notes pursuant to the
Indenture, to issue the Exchangeable Transferor Certificate and to
issue the Supplemental Interests, if any, pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes, to acquire
he Trust Estate and, subject to the provisions of this Section 2.3,
any futures, forwards, swaps, interest rate caps or other passive
derivate financial instruments with similar characteristics, and to pay
to Transferor the amounts owed pursuant to Section 2.1 of the Transfer
and Servicing Agreement;
(iii) to assign, grant, pledge and mortgage the Collateral
pursuant to the Indenture and to hold, manage and distribute to the
Holder of the Exchangeable Transferor Certificate pursuant to the
terms of this Agreement and the Transaction Documents any portion of
the Collateral released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into, execute, deliver and perform the
Transaction Documents to which it is to be a party;
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(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of payments to the
Noteholders and distributions to the Holder of the Exchangeable
Transferor Certificate.
The Trust shall not have power, authority or authorization to, and shall not,
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the Transaction Documents. The Trust shall have no
power to hold any derivative financial instrument unless such derivative
financial instrument complies with the requirements of paragraph 40 of Statement
of Financial Accounting Standards No. 140 issued by the Financial Accounting
Standards Board, including any interpretations thereof or any successor
regulations issued by the Financial Accounting Standards Board.
Section 2.4. Appointment of Owner Trustee. Transferor hereby appoints
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein and in the Business Trust
Statute.
Section 2.5. Capital Contribution of Trust Estate. Pursuant to the
Transfer and Servicing Agreement, Transferor shall assign, transfer, convey and
set over to the Trust, as of the Initial Closing Date, the assets specified in
the Transfer and Servicing Agreement. Owner Trustee hereby acknowledges receipt
in trust from Transferor, as of the date hereof, of the foregoing contribution,
which shall constitute part of the Trust Estate and shall be held by Owner
Trustee on behalf of the Trust. Transferor shall pay organizational expenses of
the Trust as they may arise or shall, upon the request of Owner Trustee,
promptly reimburse Owner Trustee for any such expenses paid by Owner Trustee.
Section 2.6. Declaration of Trust. Owner Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of Transferor, subject to the obligations
of the Trust under the Transaction Documents to which it is a party, and shall
file a certificate of trust substantially in the form of Exhibit [ ]. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such trust. It is the intention of the parties hereto that, for
income tax purposes, the Trust shall be treated as a security device and not as
an entity separate from Transferor and its assets shall be treated as owned in
whole by Transferor. The parties hereto agree that they will take no action
contrary to the foregoing intention. Effective as of the date hereof, Owner
Trustee shall have all rights, powers and authority set forth herein and, to the
extent not inconsistent herewith, in the Business Trust Statute with respect to
accomplishing the purposes of the Trust.
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Section 2.7. Title to Trust Property. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.8. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by, or on
behalf of, the Trust shall be located 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
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office.
Section 2.9. Representations and Warranties of Transferor. Transferor
hereby represents and warrants to Owner Trustee (as such or in its individual
capacity) that:
(a) Organization and Good Standing. The Transferor is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has full power, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, to execute, deliver and perform its
obligations under this Agreement.
(b) Due Qualification. The Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirements) and has
obtained all necessary licenses and approvals with respect to the Transferor, in
each jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a materially adverse effect on its ability to perform its
obligations under the this Agreement.
(c) Due Authorization. The execution, delivery and performance of
this Agreement by the Transferor and the consummation by the Transferor of the
transactions provided for in this Agreement have been duly authorized by the
Transferor by all necessary action on the part of the Transferor.
(d) No Violation. The execution and delivery of this Agreement by
the Transferor, the performance by the Transferor of the transactions
contemplated by this Agreement and the fulfillment by the Transferor of the
terms hereof will not conflict with, violate or result in any breach of any of
the material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any Requirement of Law applicable to the
Transferor or any material indenture, contract, agreement, mortgage, deed of
trust or other
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instrument to which the Transferor is a party or by which it or any of its
properties are bound.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Transferor, threatened against the
Transferor before any court, regulatory body, administrative agency, arbitrator
or other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Transferor, would materially and
adversely affect the performance by the Transferor of its obligations under this
Agreement or (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement.
(f) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
to be obtained on or prior to the date as of which this representation is being
made in connection with the execution and delivery by the Transferor of this
Agreement, the performance by the Transferor of the transactions contemplated by
this Agreement and the fulfillment by the Transferor of the terms hereof, have
been obtained.
(g) Enforceability. This Agreement is legal, valid and enforceable
against Transferor.
Section 2.10. Liability of Beneficiaries. The Holder of the
Exchangeable Transferor Certificate, including the Holder of Supplemental
Interests, if any, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
ARTICLE III
BENEFICIAL INTERESTS
Section 3.1. Initial Ownership. Transferor, as the Holder of the
Exchangeable Transferor Certificate (i) shall initially be the only beneficial
owner of the Trust and (ii) shall be bound by the provisions of this Trust
Agreement.
Section 3.2. Exchangeable Transferor Certificate. The Exchangeable
Transferor Certificate shall represent an undivided beneficial interest in the
Trust Estate subject to the lien of the Notes created pursuant to the Indenture,
including the right to receive Collections with respect to the Receivables and
other amounts at the times and in the amounts specified in the Indenture and any
Indenture Supplement to be paid to the Holder of the Exchangeable Transferor
Certificate.
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Section 3.3. Form of Transferor Interest. The Transferor Interest
shall be evidenced by the Exchangeable Transferor Certificate.
Section 3.4. Restrictions on Transfer; Issuance of Supplemental
Interests. (a) The Holder of the Exchangeable Transferor Certificate may tender
the Exchangeable Transferor Certificate, or the Exchangeable Transferor
Certificate and the Notes of any Series, to the Owner Trustee in exchange for
(i) one or more newly issued Notes and (ii) a reissued Exchangeable Transferor
Certificate (any such tender an "Exchange"). The form and terms of any Exchange
shall be defined in a supplement to this Agreement (which supplement shall be
subject to Section 10.1 to the extent that it amends any of the terms of this
Agreement) to be delivered to or upon the order of the Transferor (or the holder
of the Exchangeable Transferor Certificate). The tender of any such Exchange to
any Person shall be subject to the following conditions: (a) the Indenture
Trustee and Owner Trustee shall have received an Opinion of Counsel to the
effect that, unless otherwise specified in the related supplement, the newly
issued Series of Notes (other than any Class of Notes required to be retained by
the Transferor) will be characterized as either indebtedness or an interest in a
partnership (that is not taxable as a corporation) under existing law for
Federal income tax purposes and that the issuance of the newly issued Series of
Notes will not have any material adverse impact on the Federal income tax
characterization of any outstanding Series of Notes that have been the subject
of a previous opinion of tax counsel or result in the Trust being taxable as an
association or as a publicly traded partnership taxable as a corporation for
Federal or applicable state tax purposes (such opinion, a "Tax Opinion"), (b)
the Indenture Trustee shall have received an agreement, if any, pursuant to
which the Enhancement Provider agrees to provide Enhancement, (c) the Indenture
Trustee and Owner Trustee have received written confirmation from each Rating
Agency that the Exchange will not result in the Rating Agency's reducing or
withdrawing its rating on any then outstanding Series rated by it and (d) the
Indenture Trustee shall have received the existing Exchangeable Transferor
Certificate and the Notes of the Series, if any, to be exchanged. Upon
satisfaction of such conditions, the Owner Trustee shall cancel the existing
Exchangeable Transferor Certificate and issue, as provided above, such Series of
Notes and a new Exchangeable Transferor Certificate. There is no limit to the
number of Exchanges that may be performed under this Agreement.
(a) Except as provided in any Indenture Supplement, the Transferor's
interest in the Exchangeable Transferor Certificate and other amounts payable to
the Transferor shall not be sold, transferred, assigned, exchanged, pledged,
participated or otherwise conveyed, unless (i) the Indenture Trustee has
received an Officer's Certificate stating that such sale, transfer, assignment,
exchange, pledge, participation or conveyance will not, while any Series of
Notes remains outstanding, reduce the Transferor Interest Percentage below the
Minimum Transferor Interest Percentage and (ii) prior to such sale, transfer,
assignment, exchange, pledge, participation or conveyance, the Rating Agency
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Condition is satisfied and (iii) the Indenture Trustee receives prior thereto an
Opinion of Counsel to the effect that (x) the conveyed interest in the
Exchangeable Transferor Certificate will be treated as either debt or an
interest in a partnership for Federal income tax purposes and that the
conveyance of such interest will not cause the Trust to be characterized for
Federal income tax purposes as an association taxable as a corporation or
otherwise have any material adverse impact on the Federal or applicable state
income taxation of any outstanding Series of Notes or any Note Owner and (y)
such transfer will not cause a taxable event for Federal income tax purposes to
any Noteholder.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. Prior Notice to Transferor with Respect to Certain Matters.
With respect to the following matters, unless otherwise instructed by
Transferor, the Trust shall not take action unless at least thirty (30) days
before the taking of such action Owner Trustee shall have notified Transferor in
writing:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on the Trust Estate) and the settlement of any action, claim
or lawsuit brought by or against the Trust (other than an action to collect on
the Trust Estate);
(b) the election by the Trust to file an amendment to the Certificate of
Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of Transferor;
(e) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
that would not materially adversely affect the interests of Transferor; or
(f) the appointment pursuant to the Indenture of a replacement or successor
Transfer Agent and Registrar or Indenture Trustee, or the consent to the
assignment by the Transfer Agent and Registrar, Administrator or Indenture
Trustee of its obligations under the Indenture.
Section 4.2. Restrictions on Power.
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(a) Owner Trustee shall not be required to take or refrain from taking any
action if such action or inaction would be contrary to any obligation of the
Trust or Owner Trustee (as such or in its individual capacity) under any of the
Transaction Documents or would be contrary to Section 2.3.
(b) Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated by the Transaction Documents.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.1. General Authority. Each of the Trust and Owner Trustee in the
name and on behalf of the Trust shall have power and authority, and is hereby
authorized and empowered, to execute and deliver the Transaction Documents to
which the Trust is to be a party and each certificate or other document attached
as an exhibit to or contemplated by the Transaction Documents to which the Trust
is to be a party, or any other agreement, in each case, in such form as
Transferor shall approve as evidenced conclusively by Owner Trustee's execution
thereof and Transferor's execution of the related documents. In addition to the
foregoing, Owner Trustee in the name and on behalf of the Trust shall also have
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. Owner Trustee in the name and on behalf of the Trust shall also have
power and authority and is hereby authorized and empowered from time to time to
take such action as Transferor or Administrator directs in writing with respect
to the Transaction Documents.
Section 5.2. General Duties. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which the
Trust is a party and to administer the Trust in the interest of Transferor,
subject to the Transaction Documents and in accordance with the provisions of
this Agreement. Notwithstanding the foregoing, Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent Administrator has agreed in the
Administration Agreement or another Transaction Document to perform any act or
to discharge any duty of Owner Trustee or the Trust under any Transaction
Document, and Owner Trustee shall not be personally liable for the default or
failure of Administrator to carry out its obligations under the Administration
Agreement.
Section 5.3. Action Upon Instruction.
(a) Owner Trustee shall not be required to take any action hereunder or
under any other Transaction Document if Owner Trustee shall have reasonably
8
determined, or shall have been advised by counsel, that such action is likely to
result in personal liability on the part of Owner Trustee or is contrary to the
terms of any Transaction Document or is otherwise contrary to law.
(b) Whenever Owner Trustee is unable to decide between alternative courses
of action permitted or required by the terms of any Transaction Document, Owner
Trustee shall promptly give notice (in such form as shall be appropriate under
the circumstances) to Transferor requesting instruction as to the course of
action to be adopted, and to the extent Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction of Transferor
received, Owner Trustee shall not be personally liable on account of such action
or inaction to any Person. If Owner Trustee shall not have received appropriate
instruction within ten (10) days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not in violation of the Transaction Documents, as it shall
deem to be in the best interest of Transferor, and shall have no personal
liability to any Person for such action or inaction.
(c) In the event that Owner Trustee is unsure as to the application of any
provision of any Transaction Document or 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
Owner Trustee or is silent or is incomplete as to the course of action that
Owner Trustee is required to take with respect to a particular set of facts,
Owner Trustee may give notice (in such form as shall be appropriate under the
circumstances) to Transferor requesting instruction and, to the extent that
Owner Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, Owner Trustee shall not be personally liable, on
account of such action or inaction, to any Person. If Owner Trustee shall not
have received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not in violation of the Transaction
Documents, as it shall deem to be in the best interests of Transferor, and shall
have no personal liability to any Person for such action or inaction.
(d) The Administrator and the Transferor may, by written instruction,
direct the Owner Trustee in the administration of the Trust to the extent
permitted by this Agreement and the Administration Agreement.
Section 5.4. No Duties Except as Specified in this Agreement or in
Instructions. 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 or the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as
expressly provided
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by the terms of this Agreement or in any document or written instruction
received by Owner Trustee pursuant to Section 5.3; and no implied duties or
obligations shall be read into any Transaction Document against Owner Trustee.
Owner Trustee shall have no responsibility for any filing or recording,
including 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 to prepare or file any
Commission filing for the Trust, or to prepare any tax forms, returns or reports
or to record any Transaction Document. Owner Trustee in its individual capacity
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
Estate that result from actions by, or claims against, Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Trust Estate or the transactions contemplated by the Transaction
Documents.
Section 5.5. No Action Except under Transaction Documents or Instructions.
Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal
with any part of the Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon Owner Trustee pursuant to this
Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to Owner Trustee pursuant
to Section 5.3.
Section 5.6. Restrictions. Owner Trustee shall not take any action (a)
that, to the actual knowledge of a Responsible Officer of Owner Trustee, would
violate the purposes of the Trust set forth in Section 2.3 or (b) that, to the
actual knowledge of a Responsible Officer of Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal income tax purposes.
Transferor shall not direct Owner Trustee to take action that would violate the
provisions of this Section 5.6.
Section 5.7. Tax Returns. In the event the Trust shall be required to file
tax returns, Administrator shall prepare or shall cause to be prepared such tax
returns and shall provide such tax returns to Owner Trustee for signature at
least five (5) days before such tax returns are due to be filed. Administrator,
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 Owner Trustee at least five
(5) days prior to the date it is required by law to be distributed to
Noteholders. Owner Trustee, upon request, will furnish Administrator with all
such information known to Owner Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust, and shall, upon
request, execute such returns. In no event shall Owner Trustee or Indenture
Trustee be liable for any liabilities, costs or expenses of the Trust or any
Noteholder arising under any tax law, including federal, state or local income
or excise taxes or any other tax
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imposed on or measured by income (or any interest or penalty with respect
thereto arising from a failure to comply therewith).
Section 5.8. Confidentiality. The Owner Trustee hereby agrees not to
disclose to any Person any of the account numbers or other information contained
in any list of Accounts delivered to the Owner Trustee pursuant to any
Transaction Document; provided that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for the Owner Trustee or any party involved in
the transactions contemplated hereby, (iii) to bank examiners, auditors or
accountants, (iv) in connection with any litigation to which Wilmington Trust
Company or the Owner Trustee is a party involving the Trust Agreement or the
transactions contemplated hereby; provided further that unless specifically
prohibited by applicable law or court order, the Owner Trustee agrees, prior to
disclosure of any such confidential information, to notify the Transferor of any
request for disclosure of any such information (x) by any governmental agency or
representative thereof (other than any such request in connection with any
examination of financial condition by such governmental agency) or (y) pursuant
to legal process.
ARTICLE VI
CONCERNING OWNER TRUSTEE
Section 6.1. Acceptance of Trusts and Duties. Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts, but only upon the terms of this Agreement. Owner Trustee also
agrees to disburse all moneys actually received by it constituting part of the
Trust Estate upon the terms of the Transaction Documents. Owner Trustee shall
not be personally answerable or accountable under any Transaction Document under
any circumstances, except (i) for its own willful misconduct, bad faith or
negligence in the performance of its duties or the omission to perform any such
duties or (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 6.3 expressly made by Owner Trustee in its individual
capacity. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) Owner Trustee shall not be personally liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee;
(b) 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
Administrator or Transferor;
(c) no provision of this Agreement or any other Transaction Document shall
require Owner Trustee to expend or risk funds or otherwise incur any personal
financial liability in the exercise or performance of any of its duties,
11
rights or powers hereunder or under any other Transaction Document, if Owner
Trustee shall have 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 (as such and in its individual capacity);
(d) under no circumstances shall Owner Trustee be personally liable for
indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) Owner Trustee shall not be personally responsible for or in respect of
the validity or sufficiency of this Agreement, the due execution hereof by
Transferor or the form, character, genuineness, sufficiency, value or validity
of any of the Trust Estate, the Transaction Documents, the Notes or the
Exchangeable Transferor Certificate, and Owner Trustee shall in no event assume
or incur any personal liability, duty, or obligation to any Noteholder,
Transferor, any Holder of the Exchangeable Transferor Certificate or any other
Person, other than as expressly provided for herein or expressly agreed to in
the other Transaction Documents;
(f) Owner Trustee shall not be personally liable for the default or
misconduct of, and shall have no duty to monitor the performance of, Transferor,
Servicer, Administrator or Indenture Trustee or any other Person under any of
the Transaction Documents or otherwise, and Owner Trustee shall have no
obligation or personal liability to perform the obligations of the Trust under
the Transaction Documents, including those that are required to be performed by
Administrator under the Administration Agreement, Indenture Trustee under the
Indenture or Servicer under the Transfer and Servicing Agreement;
(g) Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to any
Transaction Document, at the request, order or direction of Transferor, unless
the Transferor has offered to Owner Trustee (as such and in its individual
capacity) security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by Owner Trustee therein or thereby. The
right of Owner Trustee to perform any discretionary act enumerated in any
Transaction Document shall not be construed as a duty, and Owner Trustee shall
not be answerable or personally liable to any Person for any such act other than
liability to the Trust and the beneficial owners of the Trust for its own
negligence, bad faith or willful misconduct in the performance of any such act
or the omission to perform any such act; and
(h) Notwithstanding anything contained herein to the contrary, 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
12
of Delaware by or with respect to 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 Owner
Trustee (as such or in its individual capacity); or (iii) subject 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 Owner Trustee
contemplated hereby. Owner Trustee shall be entitled to obtain advice of counsel
(which advice shall be an expense of Transferor) to determine whether any action
required to be taken pursuant to the Agreement results in the consequences
described in clauses (i), (ii) and (iii) of the preceding sentence. In the event
that said counsel advises Owner Trustee that such action will result in such
consequences, Transferor shall appoint an additional trustee pursuant to Section
9.5 to proceed with such action.
Section 6.2. Furnishing of Documents. Owner Trustee shall furnish to
Transferor and Indenture Trustee, promptly upon written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to Owner Trustee under
the Transaction Documents.
Section 6.3. Representations and Warranties. Owner Trustee (as such and in
its individual capacity) hereby represents and warrants to Transferor that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware. It has all requisite
corporate and trust power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate and trust 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 this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, 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 banking or trust
powers of Owner Trustee (as such and in its individual capacity) or any judgment
or order binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to which
it is a party or by which any of its properties may be bound.
Section 6.4. Reliance; Advice of Counsel.
(a) Owner Trustee shall incur no personal liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
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certificate, report, opinion, bond, or other document or paper reasonably
believed by it to be genuine and reasonably believed by it to be signed by the
proper party or parties. Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any Person 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 the determination of which is not specifically prescribed herein, Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized officer
of an appropriate Person, as to such fact or matter, and such certificate shall
constitute full protection to 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, Owner Trustee (i) may act directly or through agents or
attorneys pursuant to agreements entered into with any of them, and Owner
Trustee shall not be personally liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. Owner Trustee shall not be personally liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or written advice of any such counsel, accountants or other such Persons.
Section 6.5. Not Acting in Individual Capacity. Except as expressly
provided in this Article VI, in accepting the trusts hereby created, [Owner
Trustee] acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against Owner Trustee by reason of
the transactions contemplated by any Transaction Document shall look only to the
Trust Estate for payment or satisfaction thereof.
Section 6.6. Owner Trustee Not Liable for Notes or Receivables. The
statements contained herein and in the Notes and other Transaction Documents
(other than the representations and warranties in Section 6.3) shall be taken as
the statements of Transferor, and Owner Trustee assumes no responsibility for
the correctness thereof. Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement or any other Transaction Document, the
Notes or related documents. Owner Trustee shall at no time have any
responsibility or personal liability for or with respect to the legality,
validity and enforceability of the Receivables or the perfection and priority of
any security interest in the Receivables or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Estate or its ability to generate the payments to be distributed to the
Noteholders under the Indenture, including the existence, condition and
ownership of the Receivables; the existence and contents of the Receivables on
any computer or other record thereof; the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the
14
completeness of the Receivables; the performance or enforcement of the
Receivables; the compliance by Transferor with any warranty or representation
made under any Transaction Document or in any related document or the accuracy
of any such warranty or representation or any action of Administrator, Servicer
or Indenture Trustee taken in the name of Owner Trustee.
Section 6.7. Owner Trustee May Own Notes. Owner Trustee may become the
owner or pledgee of Notes. If Owner Trustee becomes the owner or pledgee of
Notes it shall have the same rights as it would have if it were not Owner
Trustee. Owner Trustee may deal with Transferor, Administrator, Servicer and
Indenture Trustee in banking transactions with the same rights as it would have
if it were not Owner Trustee.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.1. Owner Trustee's Fees and Expenses. Owner Trustee (in its
individual capacity) shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date hereof between
Transferor and Owner Trustee (in its individual capacity) (which compensation
shall not be limited by any law on compensation of a trustee of an express
trust), and Owner Trustee (in its individual capacity) shall be entitled to be
reimbursed by Transferor for its other reasonable expenses hereunder, including
the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as Owner Trustee may employ in connection
with the exercise and performance of its rights and its duties hereunder and
under the Transaction Documents; provided, however, that Owner Trustee shall
have no recourse to the assets pledged under the Indenture with respect to any
payments pursuant to this Section 7.1 and Owner Trustee's right to enforce such
obligation shall be subject to the provisions of Section 10.8.
Section 7.2. Indemnification. To the fullest extent permitted by law,
Transferor shall indemnify, defend and hold harmless Owner Trustee (as such and
in its individual capacity) and its successors, assigns, directors, officers,
agents, employees and servants (each an "Indemnified Party" and 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 Owner Trustee or
any Indemnified Party in any way relating to or arising out of the Transaction
Documents, the Trust Estate, the acceptance and administration of the Trust
Estate or any action or inaction of Owner Trustee; provided that Transferor
shall not be liable for or required to indemnify any Indemnified Party from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 6.1 or Expenses for which indemnification is actually
received under other Transaction
15
Documents; provided further that Transferor shall not be liable for or required
to indemnify an Indemnified Party from and against expenses arising or resulting
from (i) the Indemnified Party's own willful misconduct, bad faith or
negligence, or (ii) the inaccuracy of any representation or warranty contained
in Section 6.3. No Indemnified Party shall have recourse to the assets pledged
under the Indenture with respect to any Expenses payable by Transferor pursuant
to this Section 7.2. An Indemnified Party's right to enforce such obligation
shall be subject to the provisions of Section 10.8. The indemnities contained in
this Section 7.2 shall survive the resignation and termination of Owner Trustee
or the termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Owner Trustee's choice of legal counsel shall be subject to the approval of the
Transferor, which approval shall not be unreasonably withheld.
Section 7.3. Payments to Owner Trustee. Any amounts paid to Owner Trustee
or any other Indemnified Party pursuant to this Article VII shall not be
construed to be a part of the Trust Estate.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.1. Termination of Trust Agreement.
(a) The Trust shall dissolve upon the date specified by Transferor (the
"Trust Termination Date", written notice of which shall be provided to Owner
Trustee), provided that the Trust Termination Date shall not be earlier than the
day on which the rights of all Series of Notes to receive payments from the
Trust have terminated. After satisfaction of liabilities of the Trust as
provided by applicable law, any money or other property held as part of the
Trust Estate following such distribution shall be distributed to Transferor. The
bankruptcy, liquidation, dissolution, termination, death or incapacity of
Transferor shall not (x) operate to terminate this Agreement or annul, dissolve
or terminate the Trust, or (y) entitle Transferor's 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 Estate or
(z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in Section 8.1(a), neither Transferor nor any Holder
of the Exchangeable Transferor Certificate shall be entitled to revoke, dissolve
or terminate the Trust.
(c) Upon completion of the winding up of the Trust in accordance with the
Business Trust Statute, Owner Trustee shall cause the Certificate of Trust to be
canceled by filing a certificate of cancellation with the Secretary of State of
the State of Delaware in accordance with the provisions of Section 3810 of the
16
Business Trust Statute and thereupon the Trust and this Agreement (other than
Articles VI and VII and Section 10.8) shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.1. Eligibility Requirements for Owner Trustee. Owner Trustee
shall at all times be a Person satisfying the provisions of Section 3807(a) of
the Business Trust Statute; authorized to exercise trust powers; having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authorities; and having (or having a parent
which has) a rating of at least Baa3 by ▇▇▇▇▇'▇, at least BBB- by Standard &
Poor's and, if rated by Fitch, at least BBB- by Fitch, or otherwise satisfactory
to each Rating Agency. 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 9.1,
the combined capital and surplus of such Person 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 Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.1, Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 9.2.
Section 9.2. Resignation or Removal of Owner Trustee. Owner Trustee may at
any time resign and be discharged from the trusts hereby created by giving
written notice thereof to Transferor; provided, however, that such resignation
and discharge shall only be effective upon the appointment of a successor Owner
Trustee. Upon receiving such notice of resignation, Transferor shall promptly
appoint a successor Owner Trustee 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 at the
expense of Transferor may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time Owner Trustee shall cease to be eligible in accordance with
the provisions of Section 9.1 and shall fail to resign after written request
therefor by Transferor, or if at any time Owner Trustee shall be legally unable
to act, or shall be adjudged bankrupt or insolvent, or a receiver of Owner
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of Owner Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then Transferor may, but shall
not be required to, remove Owner Trustee. If Transferor shall remove Owner
Trustee under the authority of the immediately preceding sentence, Transferor
shall promptly (i) appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed
17
and one copy to the successor Owner Trustee and (ii) pay all amounts owed to the
outgoing Owner Trustee in its individual capacity.
Any resignation or removal of Owner Trustee and appointment of a successor
Owner Trustee pursuant to any of the provisions of this Section 9.2 shall not
become effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.3 and, in the case of removal, payment of all fees and
expenses owed to the outgoing Owner Trustee (as such or in its individual
capacity). Transferor shall provide notice of such resignation or removal of
Owner Trustee to each Rating Agency.
Section 9.3. Successor Owner Trustee. Any successor Owner Trustee appointed
pursuant to Section 9.2 shall execute, acknowledge and deliver to 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 payment of its fees and expenses deliver to the successor
Owner Trustee all documents and statements and monies held by it under this
Agreement; and 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 9.3 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.3, Transferor shall mail notice of such acceptance of appointment
including the name of such successor Owner Trustee to the Indenture Trustee, the
Noteholders and each Rating Agency. If Transferor 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 Transferor.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.3, such successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business of such successor Owner
Trustee in the State of Delaware.
Section 9.4 Merger or Consolidation of Owner Trustee. Notwithstanding
anything herein to the contrary, any Person into which Owner Trustee may be
merged or converted or with which it may be consolidated, or any
18
Person resulting from any merger, conversion or consolidation to which Owner
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of Owner Trustee, shall be the successor of
Owner Trustee hereunder (provided that such Person shall meet the eligibility
requirements set forth in Section 9.1), without the execution or filing of any
instrument or any further act on the part of any of the parties hereto; provided
further that (a) Owner Trustee shall mail notice of such merger or consolidation
to each Rating Agency and (b) Owner Trustee shall file any necessary amendments
to the Certificate of Trust with the Secretary of State of the State of
Delaware.
Section 9.5. 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 Estate
may at the time be located, Transferor and Owner Trustee acting jointly shall
have the power and shall execute and deliver all instruments to appoint one or
more Persons approved by each of Transferor and Owner Trustee to act as
co-trustee, jointly with Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 9.5, such powers, duties, obligations, rights
and trusts as Transferor and Owner Trustee may consider necessary or desirable.
If Transferor shall not have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, 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 9.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.3.
Each 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 Owner Trustee shall be conferred upon and exercised or performed by
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 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, 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 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 Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
19
(iii) Transferor and 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 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 IX. 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 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, Owner Trustee. Each
such instrument shall be filed with Owner Trustee and a copy thereof given to
Transferor.
Any separate trustee or co-trustee may at any time appoint 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 Owner
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE X
MISCELLANEOUS
Section 10.1 Supplements and Amendments. This Agreement may be amended from
time to time, by a written amendment duly executed and delivered by Transferor
and Owner Trustee, without the consent of any of the Noteholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or to add
any other provisions with respect to matters or questions raised under this
Agreement which shall not be inconsistent with the provisions of this Agreement;
provided, however, that such amendment will not, as evidenced by an Opinion of
Counsel of Transferor addressed and delivered to Owner Trustee and Indenture
Trustee, materially and adversely affect the interest of any Noteholder. In
addition, this Agreement may be amended from time to time, by a written
amendment duly executed and delivered by Transferor and Owner Trustee, without
the consent of any of the Noteholders, and upon satisfaction of the Rating
Agency Condition, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or modifying in
any manner the rights of the Noteholders; provided, however, that such amendment
will not (i) as evidenced by an Opinion of Counsel delivered to the Owner
Trustee and Indenture Trustee, materially and adversely affect the interests of
the Noteholders of any outstanding Series, which Opinion of Counsel may rely as
to any rated Series solely on the rating confirmation referred to in clause
(iii) below (or 100% of the Class of Noteholders so affected shall have
consented), (ii)
20
as evidenced by an Opinion of Counsel, cause any outstanding Series as to which
an opinion that it was debt was given on its Closing Date to fail to qualify as
debt for Federal income tax purposes, cause the Trust to be characterized for
Federal income tax purposes as an association taxable as a corporation or
otherwise have any material adverse impact on the Federal income tax
characterization of any outstanding Series of Notes or the Federal income
taxation of any Noteholder or any Note Owner and (iii) the Rating Agency
Condition shall have been satisfied; and, provided further, that such amendment
shall not effect a significant change in the Permitted Activities of the Trust
or reduce in any manner the amount of, or delay the timing of, or change the
priority of, distributions which are required to be made on any Note of such
Series without the consent of the related Noteholder or change the definition of
or the manner of calculating the interest of any Note of such Series without the
consent of the related Noteholder or reduce the required percentage for consents
to amendments pursuant to this Section without the consent of each affected
Noteholder.
This Agreement may also be amended from time to time by a written amendment
duly executed and delivered by Transferor and Owner Trustee, with the consent of
Indenture Trustee and the Holders of Notes evidencing not less than 66 2/3% of
the Invested Amount of the Notes, 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 (i) reduce in any manner the amount of, or delay
the timing of, distributions which are required to be made on any Note of such
Series without the consent of the related Noteholders, (ii) change the
definition of or the manner of calculating the Invested Amount, the Invested
Percentage, the applicable available amount under any Enhancement or the
Investor Default Amount of such Series without the consent of the related
Noteholders or (iii) reduce the aforesaid percentage required to consent to any
such amendment, without the consent of the related Noteholders. Any amendment
pursuant to this Section shall require that each Rating Agency rating the
affected Series confirm that such amendment will not cause a reduction or
withdrawal of the rating of any outstanding Series of Notes.
Promptly after the execution of any such amendment or consent, Transferor
shall furnish written notification of the substance of such amendment or consent
to Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Noteholders pursuant to
this Section 10.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof
Promptly after the execution of any amendment to the Certificate of Trust,
Owner Trustee shall cause the filing of such amendment with the Secretary of
State of the State of Delaware.
21
Owner Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Officer's Certificate of Transferor to the effect that the
conditions to amendment have been satisfied.
Owner Trustee may, but shall not be obligated to, enter into, and unless it
has consented thereto in writing shall not be bound by, any amendment which
affects Owner Trustee's own rights, duties, benefits, protections, privileges or
immunities (as such or in its individual capacity) under this Agreement or
otherwise.
Section 10.2. No Legal Title to Trust Estate in Transferor. Transferor
shall not have legal title to any part of the Trust Estate. No transfer, by
operation of law or otherwise, of any right, title, and interest of Transferor
to and in its undivided beneficial interest in the Trust Estate shall operate to
terminate this Agreement or annul, dissolve or terminate the Trust or entitle
any transferee to an accounting or to the transfer to it of legal title to any
part of the Trust Estate.
Section 10.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of Owner Trustee (as such or in its
individual capacity), the other Indemnified Parties, Transferor, Holder of
Supplemental Interest and, to the extent expressly provided herein, 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 Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
Section 10.4. Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices and other communications shall be in writing and
shall be deemed given upon receipt by the intended recipient or three (3)
Business Days after mailing if mailed by certified mail, postage prepaid (except
that notice to Owner Trustee, Transferor or Indenture Trustee shall be deemed
given only upon actual receipt by Owner Trustee, Transferor or Indenture
Trustee), if to Owner Trustee, addressed to the Corporate Trust Office; if to
Indenture Trustee, addressed to JPMorgan Chase Bank, 450 West 33/rd/ Street,
▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telecopy number [______], telephone
number [______],; if to Transferor, addressed to DC Funding International, Inc.,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 11, Bermuda, telecopy number
(▇▇▇) ▇▇▇-▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇; or, as to each party, at such
other address as shall be designated by such party in a written notice to each
other party.
Section 10.5. Severability. Any provision of this Agreement that is
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 provision in any other jurisdiction.
22
Section 10.6. Separate Counterparts. This Agreement may be executed by the
parties hereto 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.
Section 10.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Transferor
and its permitted assignees and Owner Trustee (as such or in its individual
capacity) and its successors, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by Transferor shall
bind the successors and assigns of Transferor.
Section 10.8. Non-petition Covenants. Notwithstanding any prior termination
of the Trust or this Agreement, [Owner Trustee], individually or in its capacity
as Owner Trustee, shall not at any time institute against the Trust, Transferor
or Certificate Trust, or solicit or join or cooperate with or encourage any
institution against the Trust, Transferor or Certificate Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligation relating to the Notes, this
Agreement or any of the Transaction Documents; provided, however, that this
Section 10.8 shall not operate to preclude any remedy described in Article V of
the Indenture.
Notwithstanding any prior termination of the Trust or this Agreement,
Transferor shall not at any time institute against the Trust or Certificate
Trust, or solicit or join or cooperate with or encourage any institution against
the Trust or Certificate Trust of, any bankruptcy, reorganization, arrangement,
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 Agreement or any of the Transaction
Documents; provided, however, that this Section 10.8 shall not operate to
preclude any remedy described in Article V of the Indenture.
Section 10.9. No Recourse. Each Person holding or owning the Exchangeable
Transferor Certificate (or any interest therein), by accepting the Exchangeable
Transferor Certificate (or its interest therein), acknowledges that the
Exchangeable Transferor Certificate does not represent an interest in or
obligation of Servicer, Owner Trustee (as such or in its individual capacity),
Indenture Trustee or any Affiliate thereof (other than the Trust), and no
recourse may be had against such parties or their assets, or against the assets
pledged under the Indenture, except as expressly provided in the Transaction
Documents.
Section 10.10. 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.
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Section 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE 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 10.12. Integration of Documents. This Agreement constitutes the
entire agreement of the parties hereto and thereto with respect to the subject
matter hereof and supersedes all prior agreements relating to the subject matter
hereof.
[Signature Page to Follow]
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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.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:________________________________
Name:
Title:
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By:________________________________
Name:
Title:
S-1