Exhibit 4.10
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BANK ONE ISSUANCE TRUST
FORM OF TRUST AGREEMENT
between
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of [ ], 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms...................................................................1
Section 1.02. Other Definitional Provisions.......................................................5
ARTICLE II
ORGANIZATION
Section 2.01. Name................................................................................6
Section 2.02. Office..............................................................................6
Section 2.03. Purpose and Powers; Owner Trust to Operate as a Single Purpose Entity...............7
Section 2.04. Appointment of Owner Trustee........................................................9
Section 2.05. Initial Capital Contribution of Trust Estate........................................9
Section 2.06. Declaration of Trust...............................................................10
Section 2.07. Title to Trust Property............................................................10
Section 2.08. Situs of Owner Trust...............................................................10
Section 2.09. Representations and Warranties of the Beneficiary..................................10
ARTICLE III
BENEFICIAL INTEREST
Section 3.01. Initial Ownership..................................................................12
Section 3.02. Restrictions on Transfer...........................................................12
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Beneficiary and Transferor with Respect to Certain Matters.........13
Section 4.02. Restrictions on Power..............................................................13
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority..................................................................14
Section 5.02. General Duties.....................................................................14
Section 5.03. Action Upon Instruction............................................................14
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions.................15
Section 5.05. No Action Except under Specified Documents or Instructions.........................16
Section 5.06. Owner Trust Operation..............................................................16
Section 5.07. Restrictions.......................................................................17
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties....................................................17
Section 6.02. Furnishing of Documents............................................................19
Section 6.03. Representations and Warranties.....................................................19
Section 6.04. Reliance; Advice of Counsel........................................................20
Section 6.05. Not Acting in Individual Capacity..................................................20
Section 6.06. Owner Trustee Not Liable for Notes or Collateral...................................21
Section 6.07. Owner Trustee May Own Notes........................................................21
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses..................................................21
Section 7.02. Indemnification....................................................................22
Section 7.03. Payments to the Owner Trustee......................................................22
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement.....................................................22
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee.........................................23
Section 9.02. Resignation or Removal of Owner Trustee............................................23
Section 9.03. Successor Owner Trustee............................................................24
Section 9.04. Merger or Consolidation of Owner Trustee...........................................25
Section 9.05. Appointment of Co-Trustee or Separate Owner Trustee................................25
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments.........................................................27
Section 10.02. No Legal Title to Owner Trust Estate in Beneficiary................................28
Section 10.03. Limitations on Rights of Others....................................................28
Section 10.04. Notices............................................................................29
Section 10.05. Severability.......................................................................29
Section 10.06. Separate Counterparts..............................................................29
Section 10.07. Successors and Assigns.............................................................29
Section 10.08. Nonpetition Covenants..............................................................29
Section 10.09. No Recourse........................................................................30
Section 10.10. Headings...........................................................................30
Section 10.11. GOVERNING LAW......................................................................30
Section 10.12. Acceptance of Terms of Agreement...................................................30
Section 10.13. Integration of Documents...........................................................31
EXHIBITS
EXHIBIT A FORM OF CERTIFICATE OF TRUST............................................................A-1
This TRUST AGREEMENT between FIRST USA BANK, NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States of America, as Transferor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Owner Trustee, is made and entered into as
of [ ], 2002.
In consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Additional Transferor" has the meaning specified in the
Transfer and Servicing Agreement.
"Administrator" means First USA or any successor
Administrator under the Transfer and Servicing Agreement.
"Affiliate" means, with respect to any specified Person,
any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Bank One Issuance Trust Trust
Agreement, as the same may be amended, modified or otherwise supplemented
from time to time.
"Asset Pool" has the meaning specified in the Indenture.
"Asset Pool Supplement" has the meaning specified in the
Indenture.
"Bank Accounts" has the meaning specified in the
applicable Asset Pool Supplement.
"Beneficial Interest" means the beneficial ownership
interest of the Beneficiary in the assets of the Trust which, with respect
to each Asset Pool shall be the Transferor Interest in that Asset Pool.
"Beneficiary" means First USA, as beneficial owner of the
Trust, and each Permitted Affiliate Transferee and other transferee under
Section 3.04.
"Business Trust Statute" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq., as the same may be amended
from time to time.
"Certificate of Trust" means the Certificate of Trust in
the form attached hereto as Exhibit A which has been filed for the Owner
Trust pursuant to Section 3810(a) of the Business Trust Statute.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collateral Agent" has, with respect to each Asset Pool,
the meaning specified in the applicable Asset Pool Supplement.
"Collateral Certificate" means an Investor Certificate
issued pursuant to a Pooling and Servicing Agreement and the related Series
Supplement.
"Corporate Trust Office" means, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration; or such other address as the Owner Trustee
may designate by notice to the Transferor, or the principal corporate trust
office of any successor Owner Trustee (the address of which the successor
Owner Trustee will notify the Beneficiary and the Transferor).
"Expenses" has the meaning specified in Section 7.02.
"First USA" means First USA Bank, National Association, a
national banking association, and its successors and permitted assigns.
"GAAP" has the meaning specified in the Indenture.
"Governmental Authority" means the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indemnified Parties" has the meaning specified in
Section 7.02.
"Indenture" means the Indenture, dated as of [ ], 2002,
between the Bank One Issuance Trust and the Indenture Trustee, as the same
may be amended, supplemented or otherwise modified from time to time.
"Indenture Supplement" has the meaning specified in the
Indenture.
"Indenture Trustee" means ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, not in its individual capacity but solely as
Indenture Trustee under the Indenture, and any successor Indenture Trustee
under the Indenture.
"Investor Certificate" has the meaning specified in the
Indenture.
"Issuer Tax Opinion" has the meaning specified in the
Indenture.
"Master Trust" has the meaning specified in the
Indenture.
"Master Trust Servicer" means First USA or any successor
servicer, in its capacity as servicer pursuant to the applicable Pooling
and Servicing Agreement.
"Master Trust Tax Opinion" has the meaning specified in
the Indenture.
"Master Trust Trustee" means the trustee under the
applicable Pooling and Servicing Agreement and each successor trustee under
such Pooling and Servicing Agreement.
"Note" has the meaning specified in the Indenture.
"Noteholder" has the meaning specified in the Indenture.
"Note Rating Agency" has the meaning specified in the
Indenture.
"Owner Trust" means the trust created by this Agreement
and the filing of the Certificate of Trust.
"Owner Trust Estate" means all right, title and interest
of the Owner Trust in and to the property and rights assigned to the Owner
Trust pursuant to Section 2.05 of this Agreement, Section 2.01 of the
Transfer and Servicing Agreement, the granting clause of the Indenture, the
granting clause of each Asset Pool Supplement, all monies, securities,
instruments and other property on deposit from time to time in the Bank
Accounts and all other property of the Owner Trust from time to time,
including any rights of the Owner Trustee and the Owner Trust pursuant to
the Transfer and Servicing Agreement.
"Owner Trustee" means Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as
owner trustee under this Agreement (unless otherwise specified herein), and
any successor Owner Trustee hereunder.
"Permitted Affiliate Transferee" is defined in Section
3.04.
"Person" means any individual, corporation, estate,
partnership, limited liability company, limited liability partnership,
joint venture, association, joint-stock company, business trust, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pooling and Servicing Agreement" means a pooling and
servicing agreement, indenture or other agreement for the issuance of
securities from time to time from a Master Trust and the servicing of the
receivables in such Master Trust, as such agreement may be amended,
restated and supplemented from time to time.
"Receivables" has the meaning specified in the Transfer
and Servicing Agreement.
"Requirements of Law" means, for any Person, the
certificate of incorporation or articles of association and by-laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation, or determination of an arbitrator or
Governmental Authority, in each case applicable to or binding upon such
Person or to which such Person is subject, whether federal, state or local
(including without limitation, usury laws, the federal Truth in Lending Act
and Regulation Z and Regulation B of the Board of Governors of the Federal
Reserve System).
"Responsible Officer" means any officer within the
Corporate Trust Office of the Owner Trustee (or any successor group of the
Owner Trustee), including any Vice President or any other officer of the
Owner Trustee customarily performing functions similar to those performed
by any person who at the time shall be an above-designated officer and who
shall have direct responsibility for the administration of this Agreement.
"Secretary of State" means the Secretary of State of the
State of Delaware.
"Securities Act" means the Securities Act of 1933, as
amended.
"Series Supplement" means a series supplement to a
Pooling and Servicing Agreement or similar document setting forth the terms
of a Collateral Certificate, as such agreement may be amended,
supplemented, restated or otherwise modified from time to time.
"Servicer" has the meaning specified in the Transfer and
Servicing Agreement.
"Transaction Documents" means the Indenture, any
Indenture Supplement, any Asset Pool Supplement, the Certificate of Trust,
this Agreement and the Transfer and Servicing Agreement and other documents
delivered in connection herewith and therewith.
"Transfer and Servicing Agreement" means the Transfer and
Servicing Agreement, dated as of [ ], 2002, between the Issuer, First USA,
as Transferor, Servicer and Administrator, and ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, as Indenture Trustee and Collateral Agent, as the
same may be amended, supplemented or otherwise modified from time to time.
"Transferor" means First USA, in its capacity as
Transferor hereunder and its successors and assigns in such capacity.
"Transferor Interest" has the meaning specified in the
applicable Asset Pool Supplement.
"UCC" means the Uniform Commercial Code as in effect in
the State of Delaware and any other applicable jurisdiction.
Section 1.02. Other Definitional Provisions. (a)
Capitalized terms used herein and not otherwise defined have the meanings
specified in the Transfer and Servicing Agreement or, if not defined
therein, in the Indenture.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting
terms not defined in this Agreement or in any such certificate or other
document, and accounting terms partly defined in this Agreement or in any
such certificate or other document to the extent not defined, shall have
the respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such
terms under GAAP, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and words
of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement; Section
and Exhibit references contained in this Agreement are references to
Sections and Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including without limitation."
(e) The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms.
ARTICLE II
ORGANIZATION
Section 2.01. Name. The Owner Trust created hereby shall
be known as "Bank One Issuance Trust," in which name the Owner Trustee may
conduct the business of the Owner Trust, make and execute contracts and
other instruments on behalf of the Owner Trust and ▇▇▇ and be sued.
Section 2.02. Office. The office of the Owner Trust shall
be in care of the Owner Trustee at the Corporate Trust Office or at such
other address in the State of Delaware as the Owner Trustee may designate
by written notice to the Beneficiary and the Transferor.
Section 2.03. Purpose and Powers; Owner Trust to Operate
as a Single Purpose Entity. The purpose of the Owner Trust is to engage in
the following activities:
(i) to acquire Collateral Certificates from
First USA or any special purpose vehicle established by First USA
or any of its Affiliates;
(ii) to acquire Receivables from First USA or
any special purpose vehicle established by First USA or any of its
Affiliates;
(iii) from time to time, to grant a security
interest in the Collateral Certificates and the Receivables, and
grant a security interest in accounts established for the benefit
of indebtedness of the Owner Trust, all to secure indebtedness of
the Owner Trust, or make any permitted transfer of interests in
any Receivables or in any portion of the Invested Amount of a
Collateral Certificate directly or beneficially to any third
party;
(iv) from time to time, to authorize and approve
the issuance of Notes pursuant to the Indenture without limitation
as to aggregate amounts and, in connection therewith, determine
the terms and provisions of such Notes and of the issuance and
sale thereof, including the following:
(A) determining the principal amount of the
Notes;
(B) determining the legal maturity date of the
Notes;
(C) determining the rate of interest, if any, to
be paid on the Notes;
(D) determining the price or prices at which
such Notes will be sold by the Owner Trust;
(E) determining the provisions, if any, for the
redemption or amortization of such Notes;
(F) determining the form, terms and provisions
of the indentures, fiscal agency agreements or other instruments
under which the Notes may be issued and the banks or trust
companies to act as trustees, fiscal agents and paying agents
thereunder;
(G) preparing and filing all documents necessary
or appropriate in connection with the registration of the Notes
under the Securities Act of 1933, the qualification of indentures
under the Trust Indenture Act of 1939 and the qualification under
any other applicable federal, foreign, state, local or other
governmental requirements;
(H) preparing any registration statement or
prospectus or other descriptive material relating to the issuance
of the Notes;
(I) listing the Notes on any United States or
foreign stock exchange;
(J) entering into one or more interest rate or
currency swaps, caps, collars, guaranteed investment contracts or
other derivative agreements with counterparties (which may
include, without limitation, First USA or any of its Affiliates)
to manage interest rate or currency risk relating to the Notes;
(K) entering into one or more supplemental
credit enhancement agreements or liquidity agreements;
(L) appointing a paying agent or agents for
purposes of payments on the Notes; and
(M) arranging for the underwriting,
subscription, purchase or placement of the Notes and selecting
underwriters, managers and purchasers or agents for that purpose;
(v) from time to time receive payments and
proceeds with respect to any Collateral Certificates and any
Receivables and the Indenture and either invest or distribute
those payments and proceeds;
(vi) from time to time make deposits to and
withdrawals from accounts established under the Indenture;
(vii) from time to time make and receive
payments pursuant to derivative agreements, supplemental credit
enhancement agreements or liquidity agreements;
(viii) from time to time make payments on the
Notes;
(ix) 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;
(x) from time to time perform such obligations
and exercise and enforce such rights and pursue such remedies as
may be appropriate by virtue of the Owner Trust being party to any
of the agreements contemplated in clauses (i) through (ix) above;
and
(xi) subject to compliance with the Transaction
Documents, to engage in such other activities as may be required
in connection with conservation of the Owner Trust Estate and the
making of distributions to the Noteholders and the Transferor,
which activities shall not be contrary to the status of the Owner
Trust as a qualified special purpose entity.
In connection with any of the foregoing, the Owner Trust may (x)
execute and deliver, and/or accept, such instruments, agreements,
certificates, UCC financing statements and other documents, and create such
security interests, as may be necessary or desirable in connection
therewith, and (y) subject to the terms of this Agreement, take such other
action as may be necessary or incidental to the foregoing. The Owner Trust
shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of the
Transaction Documents.
Section 2.04. Appointment of Owner Trustee. The
Beneficiary hereby appoints Wilmington Trust Company as Owner Trustee of
the Owner 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 2.05. Initial Capital Contribution of Trust
Estate. The Beneficiary hereby assigns, transfers, conveys and sets over to
the Owner Trustee, as of the date hereof, the sum of $1. The Owner Trustee
hereby acknowledges receipt in trust from the Beneficiary, as of the date
hereof, of the foregoing contribution, which shall constitute the initial
Owner Trust Estate and shall be held by the Owner Trustee. The Beneficiary
shall pay organizational expenses of the Owner Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee
hereby declares that it will hold the Owner Trust Estate in trust upon and
subject to the conditions set forth herein for the sole use and benefit of
the Beneficiary, subject to the obligations of the Owner Trust under the
Transaction Documents to which it is a party. It is the intention of the
parties hereto that the Owner Trust constitute a business trust under the
Business Trust Statute and that this Agreement, together with the Transfer
and Servicing Agreement, constitute the governing instrument of such
business trust. It is the intention of the parties hereto that, for income
and franchise tax purposes, the Owner Trust shall be treated as a security
device and disregarded as an entity and its assets shall be treated as
owned in whole by the Transferor. The parties hereto agree that they will
take no action contrary to the foregoing intention. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein, to the extent not inconsistent with the Business Trust
Statute.
Section 2.07. Title to Trust Property. Legal title to all
the Owner Trust Estate shall be vested at all times in the Owner Trust as a
separate legal entity until this Agreement terminates pursuant to Article
VIII, except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees of a
trust, in which case title to that part of the Owner Trust Estate shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.08. Situs of Owner Trust. The Owner Trust will
be located and administered in the State of Delaware. All bank accounts
maintained by the Owner Trustee on behalf of the Owner Trust shall be
located in the State of Delaware or the State of New York. The Owner Trust
shall not have any employees in any state other than Delaware; provided,
however, that nothing herein shall restrict or prohibit the Owner Trustee
from having employees within or without the State of Delaware. Payments
will be received by the Owner Trust only in Delaware or New York, and
payments will be made by the Owner Trust only from Delaware or New York,
The only office of the Owner Trust will be at the Corporate Trust Office in
Delaware.
Section 2.09. Representations and Warranties of the
Beneficiary. The Beneficiary hereby represents and warrants to the Owner
Trustee that:
(a) The Beneficiary is a national banking association
duly organized and validly existing in good standing under the laws of the
United States of America and has the power and authority to own its
properties and to conduct its business as such properties are presently
owned and such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) The Beneficiary is duly qualified to do business and
is in good standing (or is exempt from such requirement) in any state
required in order to conduct its business in any material respect, and has
obtained all necessary licenses and approvals with respect to the
Beneficiary, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would have a material adverse effect on
the interests of any holder of Notes issued by the Owner Trust; provided,
however, that no representation or warranty is made with respect to any
qualifications, licenses or approvals which the Owner Trustee or the
Indenture Trustee has or may be required at any time to obtain, if any, in
connection with the transactions contemplated hereby or by any other
Transaction Document to which the Owner Trustee or the Indenture Trustee,
as the case may be, is a party.
(c) The execution and delivery of this Agreement and the
consummation of the transactions provided for in this Agreement and in the
other Transaction Documents to which the Beneficiary is a party have been
duly authorized by the Beneficiary by all necessary corporate action on its
part and each of this Agreement and the other Transaction Documents to
which the Beneficiary is a party will remain, from the time of its
execution, an official record of the Beneficiary; the Beneficiary has the
power and authority to assign the property to be assigned to and deposited
with the Owner Trust pursuant to Section 2.05 of this Agreement, Section
2.01 of the Transfer and Servicing Agreement, the granting clause of the
Indenture and the granting clause of each Asset Pool Supplement.
(d) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with, 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 material default under, any
indenture, contract, agreement, mortgage, deed of trust or other instrument
to which the Beneficiary is a party or by which it or any of its properties
are bound (other than violations of such indentures, contracts, agreements,
mortgages, deeds of trust or other instruments which, individually or in
the aggregate, would not have a material adverse effect on the
Beneficiary's ability to perform its obligations under this Agreement).
(e) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to the Transferor.
(f) There are no proceedings or investigations pending
or, to the best knowledge of the Beneficiary, threatened against the
Beneficiary before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality having jurisdiction over the
Beneficiary (i) asserting the invalidity of any of the Transaction
Documents to which the Beneficiary is a party, (ii) seeking to prevent the
consummation of any of the transactions contemplated by any of the
Transaction Documents, to which the Beneficiary is a party, (iii) seeking
any determination or ruling that, in the reasonable judgment of the
Beneficiary, would materially and adversely affect the performance by the
Beneficiary of its obligations under the Transaction Documents to which the
Beneficiary is a party, or (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of the
Transaction Documents to which the Beneficiary is a party.
ARTICLE III
BENEFICIAL INTEREST
Section 3.01. Initial Ownership. Upon the formation of
the Owner Trust by the contribution pursuant to Section 2.05, the
Beneficiary shall be the sole beneficial owner of the Owner Trust.
Section 3.02. Restrictions on Transfer.
Transfers of the Beneficial Interest may be made between
First USA and any other Person who is an Affiliate of First USA (a
"Permitted Affiliate Transferee") only upon delivery to the Master Trust
Trustee and the Owner Trustee of a Master Trust Tax Opinion and an Issuer
Tax Opinion, respectively, with respect to such transfer. The Beneficiary
may not sell, participate, transfer, assign, exchange or otherwise pledge
or convey all or any part of its right, title and interest in and to its
Beneficial Interest to any other Person, except to any Permitted Affiliate
Transferee. Any purported transfer by the Beneficiary of all or any part of
its right, title and interest in and to the Beneficial Interest to any
Person will be effective only upon the issuance of a Master Trust Tax
Opinion and an Issuer Tax Opinion (each as defined in the Indenture), which
will not be an expense of the Owner Trustee and the satisfaction of any
additional conditions to the designation of an Additional Transferor
provided in Section 2.07 of the Transfer and Servicing Agreement. To the
extent permitted by applicable law, any purported transfer by the
Beneficiary of all or any part of its right, title and interest in and to
the Beneficial Interest which is not in compliance with the terms of this
Section 3.02 will be null and void.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Beneficiary and Transferor
with Respect to Certain Matters. With respect to the following matters, the
Owner Trustee shall not take action unless at least 30 days (or such lesser
time as shall be agreed upon in writing by the Beneficiary and the
Transferor) before the taking of such action the Owner Trustee shall have
notified the Beneficiary and the Transferor:
(a) the initiation of any claim or lawsuit by the Owner
Trust (other than an action to collect on any Receivable) and the
settlement of any action, claim or lawsuit brought by or against the Owner
Trust (other than an action to collect on any Receivable);
(b) the election by the Owner 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
the Beneficiary or the Transferor;
(e) the amendment, change or modification of the Transfer
and Servicing 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 the Beneficiary; or
(f) the appointment pursuant to the Indenture of a
replacement or successor Note Registrar or Indenture Trustee, or the
consent to the assignment by the Note Registrar or Indenture Trustee of its
obligations under the Indenture.
Section 4.02. Restrictions on Power. The 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 Owner Trust
or the Owner Trustee under any of the Transaction Documents or would be
contrary to Section 2.03.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority. Each of the Owner
Trustee and the Beneficiary is authorized and directed to execute and
deliver the Transaction Documents to which the Owner 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 Owner Trust is to be
a party, or other agreement, in each case, in such form as the Beneficiary
shall approve as evidenced conclusively by the Owner Trustee's execution
thereof or the Beneficiary's execution thereof. Each of the Owner Trustee
and the Beneficiary is authorized to execute and deliver registration
statements or other documents required to be filed with the Securities and
Exchange Commission. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Owner Trust pursuant to the Transaction Documents. The Owner Trustee is
further authorized from time to time to take such action as the
Administrator directs in writing with respect to the Transaction Documents,
except to the extent that the Transaction Documents expressly require the
consent of the Beneficiary for such action.
Section 5.02. General Duties. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and to administer
the Owner Trust in the interest of the Beneficiary, subject to the
Transaction Documents and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder to the extent
the Administrator has agreed in the Transfer and Servicing Agreement to
perform any act or to discharge any duty of the Owner Trustee or the Owner
Trust under any Transaction Document, and the Owner Trustee shall not be
liable for the default or failure of the Administrator to carry out its
obligations under the Transfer and Servicing Agreement.
Section 5.03. Action Upon Instruction. (a) The Owner
Trustee shall not be required to take any action hereunder if the Owner
Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of
the Owner Trustee or is contrary to the terms of any Transaction Document
or is otherwise contrary to law.
(b) Whenever the Owner Trustee is unable to decide
between alternative courses of action permitted or required by the terms of
any Transaction Document, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the
Beneficiary requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in
accordance with any written instruction of the Beneficiary received, the
Owner Trustee shall not be liable on account of such action to any Person.
If the 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 inconsistent with the Transaction Documents, as it
shall deem to be in the best interest of the Beneficiary, and shall have no
liability to any Person for such action or inaction.
(c) In the event that the 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 the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to
the Beneficiary requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any
such instruction received, the Owner Trustee shall not be liable, on
account of such action or inaction, to any Person. If the Owner Trustee
shall not have received appropriate instruction within 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 inconsistent with the Transaction Documents, as it shall deem
to be in the best interests of the Beneficiary, and shall have no liability
to any Person for such action or inaction.
Section 5.04. No Duties Except as Specified in this
Agreement or in Instructions. The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record,
sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection
with, any document contemplated hereby to which the Owner Trust is a party,
except as expressly provided by the terms of the Transaction Documents or
in any document or written instruction received by the Owner Trustee
pursuant to Section 5.03 and no implied duties or obligations shall be read
into any Transaction Document against the Owner Trustee. The Owner Trustee
shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or
maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission
filing for the Owner Trust or to record any Transaction Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any
part of the Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee in its individual capacity that are not related
to the ownership or the administration of the Owner Trust Estate.
Section 5.05. No Action Except under Specified Documents
or Instructions. The Owner Trustee shall not manage, control, use, sell,
dispose of or otherwise deal with any part of the Owner Trust Estate except
(i) in accordance with the powers granted to and the authority conferred
upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with
the Transaction Documents and (iii) in accordance with any document or
instruction delivered to the Owner Trustee pursuant to Section 5.03.
Section 5.06. Owner Trust Operation. The operations of
the Owner Trust will be conducted in accordance with the following
standards:
(a) the Owner Trust will act solely in its own name
through the Owner Trustee or the Beneficiary;
(b) the Owner Trust will not incur any indebtedness for
money borrowed or incur any obligations except in connection with the
purposes set forth in this Agreement;
(c) except to the extent otherwise permitted by the
Transaction Documents, the Owner Trust's funds and assets will at all times
be maintained separately from those of the Beneficiary and its Affiliates;
(d) the Owner Trust will take all reasonable steps to
continue its identity as a separate legal entity and to make it apparent to
third persons that it is an entity with assets and liability distinct from
those of the Beneficiary, the Beneficiary's Affiliates or any other third
person, and will use stationery and other business forms of the Owner
Trustee or the Owner Trust and not that of the Beneficiary or any of its
Affiliates, and will use its best efforts to avoid the appearance (i) of
conducting business on behalf of the Beneficiary or any Affiliates thereof,
or (ii) that the assets of the Owner Trust are available to pay the
creditors of the Beneficiary or any Affiliates thereof;
(e) the Owner Trust will not hold itself out as being
liable for the debts of the Beneficiary or any Affiliates thereof;
(f) the Owner Trust will not engage in any transaction
with the Beneficiary or any Affiliates thereof, except as required, or
specifically permitted, by this Agreement or unless such transaction is
otherwise on terms neither more favorable nor less favorable than the terms
and conditions available at the time to the Owner Trust for comparable
transactions with other Persons; and
(g) the Owner Trust will not enter into any voluntary
bankruptcy or insolvency proceeding without a finding by the Owner Trustee
that the Owner Trust's liabilities exceeds its assets or that the Owner
Trust is unable to pay its debts in a timely manner as they become due.
Section 5.07. Restrictions. The Owner Trustee shall not
take any action (a) that is inconsistent with the purposes of the Owner
Trust set forth in Section 2.03 or (b) that, to the actual knowledge of a
Responsible Officer of the Owner Trustee, would result in the Owner Trust's
becoming taxable as a corporation for federal income tax purposes. The
Beneficiary shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties. The 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. The Owner Trustee also agrees to disburse all moneys actually
received by it constituting part of the Owner Trust Estate upon the terms
of the Transaction Documents. The Owner Trustee shall not be answerable or
accountable under any Transaction Document under any circumstances, except
(i) for its own willful misconduct, bad faith or negligence, (ii) in the
case of the inaccuracy of any representation or warranty contained in
Section 6.03 expressly made by the Owner Trustee in its individual capacity
or (iii) for its failure to use ordinary care in the handling of funds. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Owner
Trustee so long as the same will not constitute negligence, bad faith or
wilful misconduct;
(b) the Owner Trustee shall not be liable with respect to
any act or omission of the Administrator or action taken or omitted to be
taken by it in good faith in accordance with the instructions of the
Administrator or the Beneficiary;
(c) no provision of this Agreement or any Transaction
Document shall require the Owner Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of its
rights or powers hereunder, if the 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;
(d) under no circumstances shall the Owner Trustee be
liable for indebtedness evidenced by or arising under any of the
Transaction Documents, including the principal of and interest on the
Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Transferor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or
in respect of the validity or sufficiency of the Transaction Documents and
the Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to the Beneficiary, other than as expressly
provided for herein;
(f) the Owner Trustee shall not be liable for the default
or misconduct of the Administrator, the Indenture Trustee or any Collateral
Agent under any of the Transaction Documents or otherwise, and the Owner
Trustee shall have no obligation or liability to perform the obligations of
the Owner Trust under the Transaction Documents that are required to be
performed by the Administrator under the Transfer and Servicing Agreement,
the Indenture Trustee under the Indenture or the applicable Collateral
Agent under the applicable Asset Pool Supplement;
(g) the 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 this Agreement, at the request, order or
direction of the Beneficiary, unless the Beneficiary has offered to the
Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein
or thereby. The right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Owner Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act; and
(h) Notwithstanding anything contained herein to the
contrary, the Owner Trustee shall not be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such
action will (i) require the registration with, licensing by or the taking
of any other similar action in respect of, any state or other Governmental
Authority or agency of any jurisdiction other than the State of Delaware by
or with respect to the Owner Trustee; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State
of Delaware becoming payable by the Owner Trustee; or (iii) subject the
Owner Trustee to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Owner Trustee contemplated hereby.
The Owner Trustee shall be entitled to obtain advice of counsel (which
advice shall be an expense of the 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 the Owner Trustee that
such action will result in such consequences, the Transferor shall appoint
an additional trustee pursuant to Section 9.05 hereby to proceed with such
action.
Section 6.02. Furnishing of Documents. The Owner Trustee
shall furnish to the Beneficiary and the 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 the Owner Trustee under the Transaction Documents.
Section 6.03. Representations and Warranties. The Owner
Trustee, in its individual capacity, hereby represents and warrants to the
Transferor that:
(a) It is a Delaware banking corporation duly organized
and validly existing in good standing under the laws of the State of
Delaware. It has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver 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 the Owner Trustee or any judgment
or order binding on it, or constitute any default under (i) its charter
documents or by-laws or (ii) any indenture, mortgage, contract, agreement
or instrument to which it is a party, which default referred to in this
clause (ii) would have a material adverse effect on the Owner Trustee's
ability, in its individual capacity, to perform its obligations under this
Agreement.
(d) The Owner Trustee complies with all of the
requirements of Chapter 38, Title 12 of the Delaware Code relating to the
qualification of a trustee of a Delaware business trust.
Section 6.04. Reliance; Advice of Counsel. (a) The Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be
genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that
the same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof conclusively rely on a
certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts
hereunder and in the performance of its duties and obligations under this
Agreement, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the
Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by
the Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled persons to be selected with reasonable care
and employed by it. The Owner Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the
written opinion or written advice of any such counsel, accountants or other
such persons.
Section 6.05. Not Acting in Individual Capacity. Except
as provided in this Article VI, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in
its individual capacity and all Persons having any claim against the Owner
Trustee by reason of the transactions contemplated by any Transaction
Document shall look only to the Owner Trust Estate for payment or
satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Notes or
Collateral. The recitals contained herein (other than the representations
and warranties of the Owner Trustee in Section 6.03) shall be taken as the
statements of the Transferor and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of the Notes or of any
Transaction Document, of the Initial Collateral Certificate, of any
additional Collateral Certificates or related documents. The Owner Trustee
shall at no time have any responsibility or liability for or with respect
to the legality, validity and enforceability of any Collateral Certificate
or the perfection and priority of any security interest in any Collateral
Certificate or any Receivables or the maintenance of any such perfection
and priority, or for or with respect to the sufficiency of the Owner Trust
Estate or its ability to generate the payments to be distributed to the
Noteholders under the Indenture, including, without limitation: the
existence, condition and ownership of any Collateral Certificate or any
Receivables; the existence and contents of any Collateral Certificate or
any Receivables on any computer or other record thereof; the validity of
the assignment of any Collateral Certificate or any Receivables to the
Owner Trust or of any intervening assignment; the completeness of any
Collateral Certificate; the performance or enforcement of any Collateral
Certificate or any Receivables; the compliance by the 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 the Administrator or the Indenture Trustee taken in the name
of the Owner Trustee.
Section 6.07. Owner Trustee May Own Notes. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may deal with the Transferor, the Administrator and
the 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 7.01. Owner Trustee's Fees and Expenses. The
Owner Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Transferor and the Owner Trustee, and the Owner Trustee shall be entitled
to be reimbursed by the Transferor for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the
Owner Trustee may employ in connection with the exercise and performance of
its rights and its duties hereunder.
Section 7.02. Indemnification. To the fullest extent
permitted by law, the Transferor shall be liable as primary obligor for,
and shall indemnify the Owner Trustee and its successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind
and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against the Owner Trustee or any
Indemnified Party in any way relating to or arising out of the Transaction
Documents, the Owner Trust Estate, the acceptance and administration of the
Owner Trust Estate or the action or inaction of the Owner Trustee
hereunder; provided that the 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 6.01; provided further, that the 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 6.03 made by the
Indemnified Party. The Owner Trustee's right to enforce such obligation
shall be subject to the provisions of Section 10.09. The indemnities
contained in this Section shall survive the resignation or termination of
the 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 7.03. Payments to the Owner Trustee. Any amounts
paid to the Owner Trustee pursuant to this Article VII shall be deemed not
to be a part of the Owner Trust Estate immediately after such payment.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement. (a) The
Owner Trust shall dissolve upon the final distribution by the Owner Trustee
of all moneys or other property or proceeds of the Owner Trust Estate in
accordance with the Business Trust Statute. Any money or other property
held as part of the Owner Trust Estate following such distribution shall be
distributed to the Beneficiary. The bankruptcy, liquidation, dissolution,
termination, death or incapacity of the Beneficiary shall not (x) operate
to terminate this Agreement or the Owner Trust, or (y) entitle the
Beneficiary'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 Owner Trust or Owner Trust Estate or (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 8.01(a), neither the
Transferor nor the Beneficiary shall be entitled to revoke or terminate the
Owner Trust.
(c) Upon the winding up of the Owner Trust in accordance
with the Business Trust Statute, the Owner Trustee shall cause the
Certificate of Trust to be canceled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section
3810 of the Business Trust Statute and thereupon the Owner Trust and this
Agreement (other than Article VII) shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee.
The Owner Trustee shall at all times be a corporation satisfying the
provisions of Section 3807(a) of the Business Trust Statute; authorized to
exercise corporate 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 Moody's, at least "BBB-" by Standard & Poor's and, if
rated by Fitch, at least "BBB-" by Fitch, or if not rated, otherwise
satisfactory to each Note Rating Agency. If such corporation 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, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 9.02.
Section 9.02. Resignation or Removal of Owner Trustee.
The Owner Trustee may at any time resign and be discharged from the trusts
hereby created by giving 30 days' prior written notice thereof to the
Administrator; 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, the Administrator 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 30 days
after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of Section 9.01 and shall fail
to resign after written request therefor by the Administrator, or if at any
time the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then the Administrator may,
but shall not be required to, remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator 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 and one copy to the successor Owner Trustee and (ii) pay all
fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions
of this Section shall not become effective until acceptance of appointment
by the successor Owner Trustee pursuant to Section 9.03 and payment of all
fees and expenses owed to the outgoing Owner Trustee. The Administrator
shall provide notice of such resignation or removal of the Owner Trustee to
each Note Rating Agency.
Section 9.03. Successor Owner Trustee. Any successor
Owner Trustee appointed pursuant to Section 9.02 shall execute, acknowledge
and deliver to the Administrator 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 the Administrator 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 9.03 unless at the time of such acceptance such
successor Owner Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section, the Administrator shall mail notice of
such Beneficiary, the Transferor, the Indenture Trustee, each Collateral
Agent, the Noteholders and each Note Rating Agency. If the Administrator
shall fail to mail such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee
shall cause such notice to be mailed at the expense of the Administrator.
Upon acceptance of appointment by a successor Owner
Trustee pursuant to this Section such successor Owner Trustee shall file an
amendment to the Certificate of Trust with the Delaware Secretary of State
reflecting the name and principal place of business of such successor Owner
Trustee in the State of Delaware.
Section 9.04. Merger or Consolidation of Owner Trustee.
Notwithstanding anything herein to the contrary, any corporation into which
the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder (provided that such corporation shall meet the eligibility
requirements set forth in Section 9.01), without the execution or filing of
any instrument or any further act on the part of any of the parties hereto;
provided, further that (a) the Owner Trustee shall mail notice of such
merger or consolidation to each Note Rating Agency and (b) the Owner
Trustee shall file any necessary amendments to the Certificate of Trust
with the Delaware Secretary of State.
Section 9.05. Appointment of Co-Trustee or Separate Owner
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 Owner Trust Estate may at the time be located, the
Administrator and the 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 the Administrator and the Owner Trustee to act as
co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Owner Trust Estate, and to vest in such
Person, in such capacity, such title to the Owner Trust, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Administrator and the Owner
Trustee may consider necessary or desirable. If the Administrator shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall
be required to meet the terms of eligibility as a successor trustee
pursuant to Section 9.01 and no notice of the appointment of any co-trustee
or separate trustee shall be required pursuant to Section 9.03.
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 the Owner Trustee shall be conferred
upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Owner Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties, and obligations
(including the holding of title to the Owner 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 the 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
(iii) the Administrator and the Owner Trustee
acting jointly may at any time accept the resignation of or remove
any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator,
Any separate trustee or co-trustee may at any time
appoint the Owner Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Owner Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time,
including in connection with the execution of additional indentures, by a
written amendment duly executed and delivered by the Beneficiary and the
Owner Trustee, without the consent of the Indenture Trustee or any of the
Noteholders, upon issuance of a Master Trust Tax Opinion and an Issuer Tax
Opinion, which shall not be expenses of the Owner Trustee; provided,
however, that such amendment will not (i) as evidenced by an Officer's
Certificate of the Transferor addressed and delivered to the Owner Trustee
and the Indenture Trustee, be reasonably expected to have an Adverse Effect
(as defined in the Indenture) and is not reasonably expected to have an
Adverse Effect at any time in the future; provided, further, however, that
such amendment will not significantly change the activities of the Owner
Trust. The Owner Trust will not be responsible for determining whether such
amendment to this Agreement will significantly change the activities of the
Owner Trust.
(b) This Agreement may also be amended from time to time,
by a written instrument executed by the Owner Trustee, at the written
direction of the Beneficiary, and the Beneficiary, with prior written
notice to each Note Rating Agency, upon issuance of a Master Trust Tax
Opinion and an Issuer Tax Opinion and (A) in the case of a significant
change to subsection 2.03(a) which the Trust reasonably believes will not
have an Adverse Effect, with the consent of holders of not less than a
majority of the Outstanding Dollar Principal Amount (as defined in the
Indenture) of each series, class or tranche of Notes affected by such
change, and (B) in all other cases, with the consent of holders of more
than 662/3% of the Outstanding Dollar Principal Amount of each series,
class or tranche of Notes affected by such change; provided, however, that,
without the consent of the holders of all of the Notes then outstanding, no
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments in respect of
any Collateral Certificate or any Receivables or distributions that are
required to be made for the benefit of the Noteholders or (b) reduce the
aforesaid percentage of the Outstanding Dollar Principal Amount of the
Notes, the holders of which are required to consent to any such amendment.
Promptly after the execution of any such amendment or
consent, the Issuer shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee, each Collateral Agent
and each Note Rating Agency.
It shall not be necessary for the consent of the
Noteholders or the Beneficiary pursuant to this Section 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, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
The Owner Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Officer's Certificate of the Owner
Trust or the Administrator to the effect that the amendment is authorized
and that the conditions to such Amendment have been satisfied. The Owner
Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Owner Trustee's own rights, duties or immunities under
this Agreement or otherwise.
Section 10.02. No Legal Title to Owner Trust Estate in
Beneficiary. The Beneficiary shall not have legal title to any part of the
Owner Trust Estate. No transfer, by operation of law or otherwise, of any
right, title, and interest of the Beneficiary to and in its Beneficial
Interest in the Owner Trust Estate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
Section 10.03. Limitations on Rights of Others. The
provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Transferor, the Beneficiary, the Administrator and, to the
extent expressly provided herein, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
Section 10.04. Notices. Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing
and shall be deemed given upon receipt by the intended recipient or three
Business Days after mailing if mailed by certified mail, postage prepaid
(except that notice to the Owner Trustee shall be deemed given only upon
actual receipt by the Owner Trustee), if to the Owner Trustee, addressed to
the Corporate Trust Office; if to the Transferor or the Beneficiary,
addressed to First USA Bank, National Association, 3 ▇▇▇▇▇▇▇▇▇ Centre, ▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, with a
copy to First USA Bank, National Association, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Gavra Flood and with a copy to BANK ONE
CORPORATION, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; 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 10.05. 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.
Section 10.06. 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 10.07. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit
of, the Transferor, the Owner Trustee and its successors and the
Beneficiary and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Beneficiary shall bind the successors and
assigns of the Beneficiary.
Section 10.08. Nonpetition Covenants. Notwithstanding any
prior termination of the Owner Trust or this Agreement, the Owner Trustee
(not in its individual capacity) and the Beneficiary, by its acceptance of
the Beneficial Interest, shall not at any time with respect to the Owner
Trust, the Beneficiary or any applicable Master Trust, acquiesce, petition
or otherwise invoke or cause the Owner Trust, the Beneficiary or any
applicable Master Trust to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the
Owner Trust, the Beneficiary or any applicable Master Trust under any
Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Owner Trust, the Beneficiary
or any applicable Master Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Owner Trust,
the Beneficiary or any applicable Master Trust; provided, however, that
this Section 10.08 shall not operate to preclude any remedy described in
Article V of the Indenture.
Section 10.09. No Recourse. The Beneficiary by accepting
the Beneficial Interest acknowledges that the Beneficial Interest does not
represent an interest in or obligation of the Transferor, the
Administrator, the Owner Trustee (in its individual capacity), the
Indenture Trustee, any Collateral Agent or any Affiliate thereof, and no
recourse may be had against such parties or their assets, or against the
assets pledged under the Indenture or the applicable Asset Pool Supplement,
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.
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. Acceptance of Terms of Agreement. THE
RECEIPT AND ACCEPTANCE OF THE BENEFICIAL INTEREST BY THE BENEFICIARY,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE BENEFICIARY OF ALL THE TERMS AND
PROVISIONS OF THIS AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE
OWNER TRUST THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE OWNER TRUST AND THE
BENEFICIARY.
Section 10.13. Integration of Documents. This Agreement,
together with the Transfer and Servicing Agreement, constitutes the entire
agreement of the parties hereto and thereto with respect to the subject
matter hereof and thereof and supercedes all prior agreements relating to
the subject matter hereof and thereof.
[Signature Page to Follow]
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:
FIRST USA BANK, NATIONAL ASSOCIATION,
as Beneficiary and as Transferor,
By: _______________________________
Name:
Title:
Exhibit A
[FORM OF] CERTIFICATE OF TRUST OF BANK ONE ISSUANCE TRUST
This Certificate of Trust of Bank One Issuance Trust (the
"Trust"), is being duly executed and filed by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Statute (12 Del.
C., ss. 3801 et seq.) (the "Act"),
1. Name. The name of the business trust created hereby is
Bank One Issuance Trust.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is
Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Trust Administration.
3. Effective Date. This Certificate of Trust shall be
effective [ ], 2002.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
of Trust in accordance with Section 3811 (a)(2) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: _______________________________
Name:
Title: