EXHIBIT 4.10
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BANK ONE ISSUANCE TRUST
AMENDED AND RESTATED TRUST AGREEMENT
between
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of May 1, 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 BANK ONE ISSUANCE TRUST AMENDED AND RESTATED 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 May 1, 2002.
WHEREAS, the Beneficiary and the Owner Trustee have
heretofore created a statutory business trust pursuant to the Delaware
Business Trust Act (as hereinafter defined) by filing the Certificate of Trust
(as hereinafter defined) with the office of the Secretary of State (as
hereinafter defined) on April 24, 2002, and entering into a Trust Agreement,
dated as of April 24, 2002 (the "Original Trust Agreement"); and
WHEREAS, the parties hereto desire to continue the Trust (as
hereinafter defined) as a statutory business trust under the Delaware Business
Trust Act and to amend and restate the Original Trust Agreement of the Trust
in its entirety.
NOW, THEREFORE, 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 Amended and
Restated 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, in its capacity as beneficial
owner of the Owner Trust, and each Permitted Affiliate Transferee and other
transferee under Section 3.02.
"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, and any successor to such statute.
"Certificate of Trust" means the Certificate of Trust of the
Owner 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 May 1, 2002,
between the Owner 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 Delaware statutory business 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
Trustee 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 3.02.
"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 relating to 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 May 1, 2002, among the Owner Trust, as
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 of
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 creation 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 the
Transferor and any other Person who is an Affiliate of the Transferor (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 the 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 any such action
taken in good faith.
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 any such action or
inaction taken in good faith.
(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 Section 2.03 of 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 personally 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 personally 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 personally 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 trust company or a banking
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 to the
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 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 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 Estate, 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, as 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 Trustee 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 Owner Trust reasonably believes will not have an Adverse Effect (as
defined in the Indenture), 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 Owner Trust 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. To the fullest extent
permitted by applicable law, 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: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST USA BANK, NATIONAL ASSOCIATION,
as Beneficiary and as Transferor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
Exhibit A
[FORM OF] CERTIFICATE OF TRUST OF BANK ONE ISSUANCE TRUST
This Certificate of Trust of Bank One Issuance Trust (the "Trust"),
has been duly executed and is being filed by the undersigned, as trustee, to
create a business trust under the Delaware Business Trust Act (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 April
24, 2002.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811 (a)(1) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: _______________________________
Name:
Title: