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Exhibit 4.5
EXECUTION COPY
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ASSOCIATES CREDIT CARD MASTER NOTE TRUST
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TRUST AGREEMENT
between
ASSOCIATES CREDIT CARD RECEIVABLES CORP.,
as Transferor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of April 1, 2000
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ARTICLE I
DEFINITIONS 1
Section 1.01. Capitalized Terms..............................................................................1
Section 1.02. Other Definitional Provisions..................................................................3
ARTICLE II
ORGANIZATION
Section 2.01. Name...........................................................................................3
Section 2.02. Office.........................................................................................3
Section 2.03. Purpose and Powers.............................................................................4
Section 2.04. Appointment of Owner Trustee...................................................................4
Section 2.05. Initial Capital Contribution of Trust Estate...................................................4
Section 2.06. Declaration of Trust...........................................................................5
Section 2.07. Title to Trust Property........................................................................5
Section 2.08. Situs of Trust.................................................................................5
Section 2.09. Representations and Warranties of Transferor...................................................5
Section 2.10. Liability of Certificateholders................................................................6
ARTICLE III
CERTIFICATES
Section 3.01. Initial Ownership..............................................................................6
Section 3.02. Form of Certificates...........................................................................6
Section 3.03. Authentication of Certificates.................................................................7
Section 3.04. Restrictions on Transfer.......................................................................7
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate...............................................7
Section 3.06. Issuance of New Transferor Certificates........................................................8
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owner and Transferor with Respect to Certain Matters...........................9
Section 4.02. Restrictions on Power..........................................................................9
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority..............................................................................9
Section 5.02. General Duties................................................................................10
Section 5.03. Action Upon Instruction.......................................................................10
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions............................11
Section 5.05. No Action Except under Specified Documents or Instructions....................................11
Section 5.06. Restrictions..................................................................................11
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties...............................................................12
Section 6.02. Furnishing of Documents.......................................................................13
Section 6.03. Representations and Warranties................................................................13
Section 6.04. Reliance; Advice of Counsel...................................................................14
Section 6.05. Not Acting in Individual Capacity.............................................................14
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or Receivables...............................14
Section 6.07. Owner Trustee May Own Notes...................................................................15
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ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses.............................................................15
Section 7.02. Indemnification...............................................................................15
Section 7.03. Payments to the Owner Trustee.................................................................16
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement................................................................16
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee....................................................17
Section 9.02. Resignation or Removal of Owner Trustee.......................................................17
Section 9.03. Successor Owner Trustee.......................................................................18
Section 9.04. Merger or Consolidation of Owner Trustee......................................................18
Section 9.05. Appointment of Co-Trustee or Separate Trustee.................................................18
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments....................................................................20
Section 10.02. No Legal Title to Trust Estate in Transferor..................................................21
Section 10.03. Limitations on Rights of Others...............................................................21
Section 10.04. Notices.......................................................................................21
Section 10.05. Severability..................................................................................22
Section 10.06. Separate Counterparts.........................................................................22
Section 10.07. Successors and Assigns........................................................................22
Section 10.08. Nonpetition Covenants.........................................................................22
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Section 10.09. No Recourse...................................................................................23
Section 10.10. Headings......................................................................................23
Section 10.11. GOVERNING LAW.................................................................................23
Section 10.12. Acceptance of Terms of Agreement..............................................................23
Section 10.13. Integration of Documents......................................................................23
EXHIBITS
EXHIBIT A FORM OF OWNERSHIP INTEREST CERTIFICATE.......................................................A-1
EXHIBIT B FORM OF TRANSFEROR CERTIFICATE...............................................................B-1
EXHIBIT C FORM OF CERTIFICATE OF TRUST.................................................................C-1
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ASSOCIATES CREDIT CARD MASTER NOTE TRUST TRUST AGREEMENT, dated as of
April 1, 2000, between ASSOCIATES CREDIT CARD RECEIVABLES CORP., a Delaware
corporation, as Transferor, and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as Owner Trustee.
ARTICLE I
DEFINITIONS
SECTION 1.01 Capitalized Terms. For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"ACCR" shall mean Associates Credit Card Receivables Corp., a Delaware
corporation.
"ACCS" shall mean Associates Credit Card Services, Inc., a Delaware
corporation.
"Administration Agreement" shall mean the Administration Agreement,
dated as of April 1, 2000, between the Issuer and ANB, as Administrator.
"Administrator" shall mean ANB, or any successor Administrator under
the Administration Agreement.
"Agreement" shall mean this Trust Agreement of Associates Credit Card
Master Note Trust, as the same may be amended, modified or otherwise
supplemented from time to time.
"ANB" shall mean Associates National Bank (Delaware), a national
banking association.
"Business Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as the same may be amended
from time to time.
"Certificates" shall mean, unless otherwise indicated, the Transferor
Certificates, the Supplemental Certificates and the Ownership Interest
Certificate.
"Certificate of Trust" shall mean the Certificate of Trust in the form
attached hereto as Exhibit C which has been filed for the Trust pursuant to
Section 3810(a) of the Business Trust Statute.
"Corporate Trust Office" shall mean, with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
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 Owner and the Transferor).
"Expenses" shall have the meaning specified in Section 7.02.
"Indemnified Parties" shall have the meaning specified in Section
7.02.
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"Indenture" shall mean the Master Indenture, dated as of April 1,
2000, between the Trust and The Bank of New York, as Indenture Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
"Indenture Trustee" shall mean The Bank of New York, not in its
individual capacity but solely as Indenture Trustee under the Indenture, and
any successor Indenture Trustee under the Indenture.
"Initial Closing Date" shall mean April 7, 2000.
"Issuer" shall mean the Trust.
"Owner" shall mean ACCR, and its successors and permitted assigns, in
its capacity as beneficial owner of the Trust hereunder and its successors and
assigns in such capacity.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, not in its individual capacity but solely as Owner Trustee
under this Agreement, and any successor Owner Trustee hereunder.
"Ownership Interest Certificate" shall mean the certificate evidencing
the beneficial ownership interest of the Owner in the Trust, substantially in
the form attached hereto as Exhibit A.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Supplemental Certificate" shall have the meaning specified in
subsection 3.06(b).
"Transfer and Servicing Agreement" shall mean the Transfer and
Servicing Agreement, dated as of April 1, 2000, among the Issuer, the
Transferor and ANB, as Servicer, as the same may be amended, supplemented or
otherwise modified from time to time.
"Transferor" shall mean ACCR, in its capacity as Transferor hereunder
and its successors and assigns in such capacity.
"Transferor Certificates" shall mean the certificates executed by the
Owner Trustee on behalf of the Trust and authenticated by or on behalf of the
Owner Trustee, substantially in the form attached hereto as Exhibit B.
"Transferor Certificate Supplement" shall have the meaning specified
in subsection 3.06(b).
"Trust" shall mean the trust created by this Agreement and the filing
of the Certificate of Trust.
"Trust Estate" shall mean all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Section
2.05 of this Agreement and Section 2.01 of the Transfer and Servicing
Agreement, all monies, investment property, instruments and other property on
deposit from time to time in the Collection Account, the Series Accounts and
the
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Special Funding Account and all other property of the Trust from time to
time, including any rights of the Owner Trustee and the Trust pursuant to the
Transaction Documents.
"Trust Termination Date" shall have the meaning specified in Section
8.01.
SECTION 1.02. Other Definitional Provisions. Capitalized terms used
herein and not otherwise defined have the meanings assigned to them in the
Transfer and Servicing Agreement or, if not defined therein, in the Indenture.
(a) 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.
(b) 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.
(c) 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, subsection and
Exhibit references contained in this Agreement are references to Sections,
subsections and Exhibits in or to this Agreement unless otherwise specified;
and the term "including" shall mean "including without limitation."
(d) 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 Trust created hereby shall be known as
"Associates Credit Card Master Note Trust," in which name the Trust and Owner
Trustee on behalf of the Trust each shall have power and authority and is
hereby authorized and empowered to and may conduct the business of the Trust,
make and execute contracts and other instruments on behalf of the Trust and ▇▇▇
and be sued.
SECTION 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Owner, the Indenture Trustee and the Transferor.
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SECTION 2.03. Purpose and Powers. The purpose of the Trust is to
engage in the activities set forth in this Section 2.03. The Trust shall have
power and authority and is hereby authorized and empowered, without the need
for further action on the part of the Trust, and the Owner Trustee shall have
power and authority, and is hereby authorized and empowered, in the name and on
behalf of the Trust, to do or cause to be done all acts and things necessary,
appropriate or convenient to cause the Trust, to engage in the activities set
forth in this Section 2.03 as follows:
(i) to execute, deliver and issue (and in the case of the
Certificates, authenticate) the Notes pursuant to the Indenture and
the Certificates pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes, to acquire
the Trust Assets and to pay the Transferor the amounts owed pursuant
to Section 2.01 of the Transfer and Servicing Agreement;
(iii) to assign, grant, pledge and mortgage the Collateral
pursuant to the Indenture and to hold, manage and distribute to the
Transferor and the Owner or the Noteholders pursuant to the terms of
this Agreement and the Transaction Documents any portion of the
Collateral released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into, execute, deliver and perform the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Estate and the making of payments to the
Noteholders and distributions to the Transferor.
The Trust shall not have power, authority or authorization to, and shall not,
engage in any activity other than in connection with the foregoing or other
than as required or authorized by the terms of this Agreement or the
Transaction Documents.
SECTION 2.04. Appointment of Owner Trustee. The Transferor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.05. Initial Capital Contribution of Trust Estate. The
Transferor 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 Transferor, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Trust Estate and
shall be held by the Owner Trustee. The Transferor shall pay organizational
expenses of the 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.
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SECTION 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Transferor, subject to the
obligations of the Trust under the Transaction Documents to which it is a
party. It is the intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the intention
of the parties hereto that, for income tax purposes, the 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 authority set
forth herein and, to the extent not inconsistent herewith, in the Business
Trust Statute with respect to accomplishing the purposes of the Trust.
SECTION 2.07. Title to Trust Property. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.08. Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict or
prohibit the Owner Trustee from having employees within or without the State of
Delaware. Payments will be received by the Trust only in Delaware or New York,
and payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in Delaware.
SECTION 2.09. Representations and Warranties of Transferor. The
Transferor hereby represents and warrants to the Owner Trustee (as such or in
its individual capacity) that:
(a) The Transferor is a Delaware corporation duly organized and
validly existing in good standing under the laws of the State of Delaware and
has full corporate 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 and any other document related hereto to which it is a party and to
perform its obligations as contemplated hereby and thereby.
(b) The Transferor 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, and has obtained all necessary licenses and approvals
with respect to the Transferor, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have a material adverse
effect on its ability to perform its obligations under this Agreement or any
other document related hereto to which the Transferor 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
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Transferor is a party have been duly authorized by the Transferor by all
necessary corporate action on its part; the Transferor has the power and
authority to assign the property to be assigned to and deposited with the Trust
pursuant to Section 2.05 of this Agreement and Section 2.01 of the Transfer and
Servicing Agreement.
(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 Transferor
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 Transferor'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 Transferor, threatened, against the Transferor before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over the Transferor (i)
asserting the invalidity of any of the Transaction Documents to which the
Transferor is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by any of the Transaction Documents to which the
Transferor is a party, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Transferor, would materially and adversely affect
the performance by the Transferor of its obligations under the Transaction
Documents to which the Transferor 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 Transferor is a party.
SECTION 2.10. Liability of Certificateholders. The holders of the
Ownership Interest Certificate, the Transferor Certificates and any
Supplemental Certificates shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
ARTICLE III
CERTIFICATES
SECTION 3.01. Initial Ownership. The Owner, in its capacity as the
holder of the Ownership Interest Certificate, and each Transferor, as the
holder of a Transferor Certificate (i) shall be the only beneficial owners of
the Trust and (ii) shall be bound by the provisions of this Trust Agreement.
SECTION 3.02. Form of Certificates. (a) The Ownership Interest
Certificate shall be issued in registered form in substantially the form
attached hereto as Exhibit A and initially
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registered as provided in Annex 1 to Exhibit A. A Transferor Certificate shall
be issued in registered form in substantially the form attached hereto as
Exhibit B and initially registered as provided in Annex 1 to Exhibit B.
(b) The Certificates shall be executed by manual or facsimile
signature of the Owner Trustee. The Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall, when
duly authenticated pursuant to Section 3.03, be validly issued and fully paid
undivided beneficial interests in the assets of the Trust and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the authentication and
delivery of the Certificates or did not hold such offices at the date of
authentication and delivery of the Certificates.
SECTION 3.03. Authentication of Certificates. On the Initial Closing
Date, the Owner Trustee shall execute, authenticate and deliver the Ownership
Interest Certificate and the Transferor Certificate upon the written order of
the Transferor, signed by its chairman of the board, its president, any vice
president, secretary, any assistant treasurer or any authorized signatory,
without further corporate action by the Transferor. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by or on behalf of the
Owner Trustee by the manual signature of a duly authorized signatory, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated, validly issued and
delivered hereunder. Each Certificate shall be dated the date of its
authentication.
SECTION 3.04. Restrictions on Transfer. To the fullest extent
permitted by applicable law, the Certificates (or any interest therein) may not
be sold, transferred, assigned, participated, pledged or otherwise disposed of
to any Person; provided, however, that a Certificate (or any interest therein)
may be sold, transferred, assigned, participated, pledged or otherwise disposed
of if the transferor thereof has provided the Owner Trustee and the Indenture
Trustee with a Tax Opinion relating to such sale, transfer, assignment,
participation, pledge or other disposition.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificate. If (a)
a mutilated Certificate shall be surrendered to the Owner Trustee, or if the
Owner Trustee shall receive evidence to its satisfaction of the destruction,
loss or theft of a Certificate and (b) there shall be delivered to the Owner
Trustee (as such and in its individual capacity) such security or indemnity as
may be required by it to save it harmless, then the Owner Trustee on behalf of
the Trust shall execute and the Owner Trustee shall authenticate and deliver,
in exchange for or in lieu of the mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and denomination. In connection
with the issuance of any new Certificate under this Section 3.05, the Owner
Trustee may require the payment of a sum sufficient to cover any tax or other
governmental charge or expense that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.05 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
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SECTION 3.06. Issuance of New Transferor Certificates. (a) Taken
together, the Transferor Certificates shall represent an undivided beneficial
interest in the Trust Assets, subject to the lien of the Notes as provided in
the Indenture, including the right to receive Collections with respect to the
Receivables and other amounts at the times and in the amounts specified in the
Indenture and any Indenture Supplement to be paid to the Transferor on behalf
of all holders of the Transferor Certificates.
(b) At any time the Transferor may surrender its Transferor
Certificate to the Owner Trustee in exchange for a newly issued Transferor
Certificate and a second certificate (a "SUPPLEMENTAL CERTIFICATE"), the form
and terms of which shall be defined in a supplement (a "TRANSFEROR CERTIFICATE
SUPPLEMENT") to this Agreement (which Transferor Certificate Supplement shall
be subject to Section 10.01 to the extent that it amends any of the terms of
this Agreement) to be delivered to or upon the order of the Transferor. The
issuance of any such Supplemental Certificate shall be subject to satisfaction
of the following conditions:
(i) on or before the fifth day immediately preceding the
Transferor Certificate surrender and exchange, the Transferor shall
have given the Owner Trustee, the Servicer, the Indenture Trustee and
each Rating Agency notice (unless such notice requirement is otherwise
waived) of such Transferor Certificate surrender and exchange;
(ii) the Transferor shall have delivered to the Owner Trustee
and the Indenture Trustee any related Transferor Certificate
Supplement in form satisfactory to the Owner Trustee and the Indenture
Trustee, executed by each party hereto;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such Transferor Certificate surrender and exchange;
(iv) such surrender and exchange will not result in any
Adverse Effect and the Transferor shall have delivered to the Owner
Trustee and the Indenture Trustee an Officer's Certificate, dated the
date of such surrender and exchange to the effect that the Transferor
reasonably believes that such surrender and exchange will not, based
on the facts known to such officer at the time of such certification,
have an Adverse Effect and that all other conditions to the issuance
of such Supplemental Certificate have been satisfied;
(v) the Transferor shall have delivered to the Owner Trustee
and Indenture Trustee (with a copy to each Rating Agency) a Tax
Opinion, dated the date of such surrender and exchange with respect to
such surrender and exchange; and
(vi) the aggregate amount of Principal Receivables plus the
principal amount of any Participation Interest theretofore conveyed to
the Trust as of the date of such surrender and exchange shall be
greater than the Required Minimum Principal Balance as of the date of
such surrender and exchange after giving effect to such surrender and
exchange.
Any Supplemental Certificate held by any Person at any time after the
date of its initial issuance may be transferred or exchanged only upon the
delivery to the Owner Trustee and
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Indenture Trustee of a Tax Opinion dated as of the date of such transfer or
exchange, as the case may be, with respect to such transfer or exchange.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. Prior Notice to Owner and Transferor with Respect to
Certain Matters. With respect to the following matters, unless otherwise
instructed by the Transferor, the Trust shall not take action unless at least
thirty (30) days before the taking of such action the Owner Trustee shall have
notified the Transferor:
(a) the initiation of any claim or lawsuit by the Trust (other than an
action to collect on the Trust Estate) and the settlement of any action, claim
or lawsuit brought by or against the Trust (other than an action to collect on
the Trust Estate);
(b) the election by the Trust to file an amendment to the Certificate
of Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Transferor;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of the
Transferor; or
(f) the appointment pursuant to the Indenture of a replacement or
successor Transfer Agent and Registrar or Indenture Trustee, or the consent to
the assignment by the Transfer Agent and Registrar, Administrator or Indenture
Trustee of its obligations under the Indenture.
SECTION 4.02. Restrictions on Power. (a) 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 Trust or the Owner Trustee
(as such or in its individual capacity) under any of the Transaction Documents
or would be contrary to Section 2.03.
(b) The Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement, the Transfer and Servicing Agreement and the
Indenture.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.01. General Authority. Each of the Trust and the Owner
Trustee in the name and on behalf of the Trust shall have power and authority,
and is hereby authorized and
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empowered, to execute and deliver the Transaction Documents to which the Trust
is to be a party and each certificate or other document attached as an exhibit
to or contemplated by the Transaction Documents to which the Trust is to be a
party, or any amendment thereto or other agreement, in each case, in such form
as the Transferor shall approve as evidenced conclusively by the Owner
Trustee's execution thereof and the Transferor's execution of the related
documents. In addition to the foregoing, the Owner Trustee in the name and on
behalf of the Trust shall also have power and authority and is hereby
authorized and empowered, but shall not be obligated, to take all actions
required of the Trust pursuant to the Transaction Documents. The Owner Trustee
in the name and on behalf of the Trust shall also have power and authority and
is hereby authorized and empowered from time to time to take such action as the
Transferor or the Administrator directs in writing with respect to the
Transaction Documents.
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 the other Transaction Documents to
which the Trust is a party and to administer the Trust in the interest of the
Transferor, 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
and under the other Transaction Documents to the extent the Administrator has
agreed in the Administration Agreement or another Transaction Document to
perform any act or to discharge any duty of the Owner Trustee or the Trust
under any Transaction Document, and the Owner Trustee shall not be personally
liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement.
SECTION 5.03. Action Upon Instruction.
(a) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in personal 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 Transferor requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts or refrains from acting in good faith in accordance with any
such instruction of the Transferor received, the Owner Trustee shall not be
personally liable on account of such action or inaction 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 in
violation of the Transaction Documents, as it shall deem to be in the best
interest of the Transferor, and shall have no personal 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,
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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 Transferor 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 personally liable, on
account of such action or inaction, 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 in violation of the
Transaction Documents, as it shall deem to be in the best interests of the
Transferor, and shall have no personal 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 Trust or the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as
expressly provided by the terms of this Agreement 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
any filing or recording, including filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it or the Trust
hereunder or to prepare or file any Commission filing for the Trust or to
record any Transaction Document. The Owner Trustee in its individual capacity
nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, the Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Trust Estate or the transactions contemplated by the Transaction
Documents.
SECTION 5.05. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Trust 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. Restrictions. The Owner Trustee shall not take any
action (a) that, to the actual knowledge of the Owner Trustee, would violate
the purposes of the Trust set forth in Section 2.03 or (b) that, to the actual
knowledge of the Owner Trustee, would result in the Trust's becoming taxable as
a corporation for federal income tax purposes. The Transferor shall not direct
the Owner Trustee to take action that would violate the provisions of this
Section 5.06.
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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 Trust Estate upon the terms of the Transaction
Documents. The Owner Trustee shall not be personally answerable or accountable
under any Transaction Document under any circumstances, except (i) for its own
willful misconduct or negligence in the performance of its duties or the
omission to perform any such duties or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 6.03 expressly made by the
Owner Trustee in its individual capacity. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be personally liable for any error of
judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or the Transferor;
(c) no provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
personal financial liability in the exercise or performance of any of its
duties, rights or powers hereunder or under any other Transaction Document, 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 (as such and in its individual capacity);
(d) under no circumstances shall the Owner Trustee be personally
liable for indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be personally responsible for or in
respect of the validity or sufficiency of this Agreement, the due execution
hereof by the Transferor or the form, character, genuineness, sufficiency,
value or validity of any of the Trust Estate, the Transaction Documents, the
Notes or the Certificates other than the genuineness of the Owner Trustee's
signature on the certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any personal liability, duty,
or obligation to any Noteholder or to the Owner or any other Person, other than
as expressly provided for herein or expressly agreed to in the other
Transaction Documents;
(f) the Owner Trustee shall not be personally liable for the default
or misconduct of the Transferor, the Servicer, the Administrator or the
Indenture Trustee or any other Person under any of the Transaction Documents or
otherwise, and the Owner Trustee shall have no obligation or personal liability
to perform the obligations of the Trust under the Transaction Documents,
including those that are required to be performed by the Administrator under
the Administration
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Agreement, the Indenture Trustee under the Indenture or the Servicer under the
Transfer and Servicing Agreement;
(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 or any other Transaction Document, at the request, order or
direction of the Transferor, unless the Transferor has offered to the Owner
Trustee (as such and in its individual capacity) security or indemnity
satisfactory to it against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner
Trustee to perform any discretionary act enumerated in this Agreement or any
other Transaction Document shall not be construed as a duty, and the Owner
Trustee shall not be answerable or personally liable to any Person for any such
act other than liability to the Trust and the beneficial owners of the Trust
for its own negligence or willful misconduct in the performance of any such act
or the omission to perform any such act; and
(h) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will (i)
require the registration with, licensing by or the taking of any other similar
action in respect of, any state or other governmental authority or agency of
any jurisdiction other than the State of Delaware by or with respect to the
Owner Trustee (as such or in its individual capacity); (ii) result in any fee,
tax or other governmental charge under the laws of any jurisdiction or any
political subdivisions thereof in existence on the date hereof other than the
State of Delaware becoming payable by the Owner Trustee (as such or in its
individual capacity); or (iii) subject the Owner Trustee (as such or in its
individual capacity) to personal jurisdiction in any jurisdiction other than
the State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Owner Trustee contemplated hereby. 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 hereof to proceed with such action.
SECTION 6.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Transferor 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 (as
such and 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.
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(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 (as such and in its individual capacity)
or any judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
SECTION 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no personal liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper
reasonably believed by it to be genuine and reasonably 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
Person as conclusive evidence that such resolution has been duly adopted by
such body and that the same is in full force and effect. As to any fact or
matter the method of the determination of which is not specifically prescribed
herein, the Owner Trustee may for all purposes hereof rely on a certificate,
signed by the president or any vice president or by the treasurer or other
authorized officer of an appropriate Person, as to such fact or matter, and
such certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be personally liable for the conduct or misconduct
of such agents or attorneys if such agents or attorneys shall have been
selected by 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 personally liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or written advice of any such counsel, accountants or other
such Persons.
SECTION 6.05. Not Acting in Individual Capacity. Except as expressly
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 Trust Estate for payment or satisfaction thereof.
SECTION 6.06. Owner Trustee Not Liable for Certificates, Notes or
Receivables. The statements contained herein and in the Certificates, Notes,
and other Transaction Documents (other than the genuineness of the signature
and authentication (as applicable) of the Owner
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Trustee on the Certificates and its representations and warranties 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 this Agreement, any
other Transaction Document or the Certificates (other than the genuineness of
the signature and authentication (as applicable) of the Owner Trustee on the
Certificates), the Notes, or related documents. The Owner Trustee shall at no
time have any responsibility or personal liability for or with respect to the
legality, validity and enforceability of the Receivables or the perfection and
priority of any security interest in the Receivables or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Trust Estate or its ability to generate the payments to be distributed to the
Noteholders under the Indenture, including, without limitation: the existence,
condition and ownership of the Receivables; the existence and contents of the
Receivables on any computer or other record thereof; the validity of the
assignment of the Receivables to the Trust or of any intervening assignment;
the completeness of the Receivables; the performance or enforcement of the
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, the Servicer 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, the Servicer 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 (in
its individual capacity) shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Transferor and the Owner Trustee (in its individual capacity), and
the Owner Trustee (in its individual capacity) 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 and under the Transaction Documents; provided, however, that the
Owner Trustee's right to enforce such obligation shall be subject to the
provisions of Section 10.08.
SECTION 7.02. Indemnification. To the fullest extent permitted by law,
the Transferor shall indemnify, defend and hold harmless the Owner Trustee (as
such and in its individual capacity) and its successors, assigns, directors,
officers, agents, employees 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
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out of the Transaction Documents, the Trust Estate, the acceptance and
administration of the Trust Estate or any action or inaction of the Owner
Trustee; 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 or
Expenses for which indemnification is actually received under other Transaction
Documents; 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. An Indemnified Party's right to enforce such obligation shall
be subject to the provisions of Section 10.08. The indemnities contained in
this Section 7.02 shall survive the resignation and termination of the Owner
Trustee or the termination of this Agreement.
SECTION 7.03. Payments to the Owner Trustee. Any amounts paid to an
Indemnified Party pursuant to this Article VII shall not be construed to be a
part of the Trust Estate.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
SECTION 8.01. Termination of Trust Agreement.
(a) The Trust shall dissolve upon the earlier of (i) at the option of
the Transferor (written notice of which shall be provided to the Owner
Trustee), the day on which the rights of all Series of Notes to receive
payments from the Trust have terminated (the "TRUST TERMINATION DATE") and (ii)
dissolution of the Trust in accordance with applicable law. After satisfaction
of liabilities of the Trust as provided by applicable law, any money or other
property held as part of the Trust Estate following such distribution shall be
distributed to the Transferor. The bankruptcy, liquidation, dissolution,
termination, death or incapacity of the Transferor shall not (x) operate to
terminate this Agreement or annul, dissolve or terminate the Trust, or (y)
entitle the Transferor's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of all or any part of the Trust or Trust Estate or (z) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 8.01(a), the Transferor shall not
be entitled to revoke, dissolve or terminate the Trust. The Owner shall not be
entitled to revoke, dissolve or terminate the Trust.
(c) Upon completion of the winding up of the Trust in accordance with
the Business Trust Statute, 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 Trust and this Agreement (other than Articles
VI and VII and Section 10.08) shall terminate.
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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 Person satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent which has) a rating of at least Baa3 by Moody's, at least BBB-
by Standard & Poor's and, if rated by Fitch, at least BBB- by Fitch, or
otherwise satisfactory to each Rating Agency (it being understood that
Wilmington Trust Company is satisfactory to each Rating Agency). If such Person
shall publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 9.01, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.01, 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 written notice thereof to the Transferor; provided, however, that
such resignation and discharge shall only be effective upon the appointment of
a successor Owner Trustee. Upon receiving such notice of resignation, the
Transferor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice of
resignation, the resigning Owner Trustee at the expense of the Transferor 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 Transferor, 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 Transferor may, but shall not be required to, remove the
Owner Trustee. If the Transferor shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Transferor shall promptly
(i) appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee and (ii) pay all amounts
owed to the outgoing Owner Trustee in its individual capacity.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 9.02
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.03 and, in the case of removal, payment of
all fees and expenses owed to the outgoing Owner Trustee (as such
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or in its individual capacity). The Transferor shall provide notice of such
resignation or removal of the Owner Trustee to each 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 Transferor and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor
Owner Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties, and obligations of its predecessor
under this Agreement, with like effect as if originally named as Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Transferor and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in
the successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section 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 9.03, the Transferor shall mail notice of such acceptance of
appointment including the name of such successor Owner Trustee to the
Transferor, the Indenture Trustee, the Noteholders and each Rating Agency. If
the Transferor shall fail to mail such notice within ten (10) days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Transferor.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section 9.03, such successor Owner Trustee shall file an amendment to
the Certificate of Trust with the Secretary of State identifying the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
SECTION 9.04. Merger or Consolidation of Owner Trustee.
Notwithstanding anything herein to the contrary, any Person into which the
Owner Trustee may be merged or converted or with which it may be consolidated,
or any Person resulting from any merger, conversion or consolidation to which
the Owner Trustee shall be a party, or any Person 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 Person
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 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 Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located,
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the Transferor 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 Transferor 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 Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 9.05, such powers, duties, obligations, rights
and trusts as the Transferor and the Owner Trustee may consider necessary or
desirable. If the Transferor shall not have joined in such appointment within
fifteen (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 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 Transferor 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 IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with 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 Transferor.
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
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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. This Agreement may be
amended from time to time, by a written amendment duly executed and delivered
by the Transferor and the Owner Trustee, with the written consent of the
Indenture Trustee, but without the consent of any of the Noteholders, and upon
satisfaction of the Rating Agency Condition, to cure any ambiguity, to correct
or supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the Noteholders;
provided, however, that such amendment will not (i) as evidenced by an
Officer's Certificate of the Transferor addressed and delivered to the Owner
Trustee and the Indenture Trustee, materially and adversely affect the interest
of any Noteholder or the Owner or cause the Trust to fail to be treated as a
"qualified special purpose entity" as defined in FASB Statement No. 125 and
(ii) as evidenced by an Opinion of Counsel addressed and delivered to the Owner
Trustee and the Indenture Trustee, cause the Trust to be classified as an
association (or a publicly traded partnership) taxable as a corporation for
federal income tax purposes; provided, further, that Section 2.03 of this
Agreement may be amended only with the consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes.
Additionally, notwithstanding the preceding sentence, this Agreement will be
amended by the Transferor and the Owner Trustee without the consent of the
Indenture Trustee or any of the Noteholders to add, modify or eliminate such
provisions as may be necessary or advisable in order to enable all or a portion
of the Trust (i) to qualify as, and to permit an election to be made to cause
the Trust to be treated as, a "financial asset securitization investment trust"
as described in the provisions of Section 860L of the Code, and (ii) to avoid
the imposition of state or local income or franchise taxes imposed on the
Trust's property or its income; provided, however, that (i) the Transferor
delivers to the Indenture Trustee and the Owner Trustee an Officer's
Certificate to the effect that the proposed amendments meet the requirements
set forth in this subsection, (ii) the Rating Agency Condition shall have been
satisfied with respect to such amendment and (iii) such amendment does not
affect the rights, benefits, protections, privileges, immunities, duties or
obligations of the Owner Trustee hereunder. The amendments which the Transferor
may make without the consent of Noteholders pursuant to the preceding sentence
may include, without limitation, the addition of a sale of Receivables.
This Agreement may also be amended from time to time by a written
amendment duly executed and delivered by the Transferor and the Owner Trustee,
with the consent of the Indenture Trustee and the Holders of Notes evidencing
not less than a majority of the Outstanding Amount of the Notes, and upon
satisfaction of the Rating Agency Condition for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that without the consent of all Noteholders, no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of distributions
20
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that are required to be made for the benefit of the Noteholders or (b) reduce
the aforesaid percentage of the Outstanding Amount of the Notes, the Holders of
which are required to consent to any such amendment; provided further, 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, cause the Trust to fail to be treated as a "qualified special purpose
entity" as defined in FASB Statement No. 125 and (ii) as evidenced by an
Opinion of Counsel addressed and delivered to the Owner Trustee and the
Indenture Trustee, cause the Trust to be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes.
Promptly after the execution of any such amendment or consent, the
Transferor shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Noteholders pursuant
to this Section 10.01 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 Transferor to the
effect that the conditions to amendment have been satisfied.
The Owner Trustee may, but shall not be obligated to, enter into, and
unless it has consented thereto in writing shall not be bound by, any amendment
which affects the Owner Trustee's own rights, duties, benefits, protections,
privileges or immunities (as such or in its individual capacity) under this
Agreement or otherwise.
SECTION 10.02. No Legal Title to Trust Estate in Transferor. The
Transferor shall not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title, and interest
of the Transferor to and in its undivided beneficial interest in the Trust
Estate shall operate to terminate this Agreement or annul, dissolve or
terminate the Trust or entitle any transferee to an accounting or to the
transfer to it of legal title to any part of the Trust Estate.
SECTION 10.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee (as such or in its
individual capacity), the other Indemnified Parties, the Transferor, the holder
of any Certificate and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Trust 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 and other communications shall be in
writing and shall be deemed given upon receipt by the intended recipient or
three (3) Business Days after mailing if mailed by
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certified mail, postage prepaid (except that notice to the Owner Trustee, the
Transferor or Indenture Trustee shall be deemed given only upon actual receipt
by the Owner Trustee, the Transferor or Indenture Trustee), if to the Owner
Trustee, addressed to the Corporate Trust Office; if to the Indenture Trustee,
addressed to The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇; if to the Transferor, addressed to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
7 ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; 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 and its permitted assignees and the Owner Trustee (as such or in its
individual capacity) and its successors, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by the
Transferor shall bind the successors and assigns of the Transferor.
SECTION 10.08. Nonpetition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, Wilmington Trust Company,
individually or in its capacity as Owner Trustee, shall not at any time with
respect to the Trust or the Transferor, acquiesce, petition or otherwise invoke
or cause the Trust or the Transferor to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Trust or the Transferor 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
Trust or the Transferor or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Trust or the Transferor;
provided, however, that this Section 10.08 shall not operate to preclude any
remedy described in Article V of the Indenture.
Notwithstanding any prior termination of the Trust or this Agreement,
the Transferor shall not at any time with respect to the Trust, acquiesce,
petition or otherwise invoke or cause the Trust to invoke the process of any
court or governmental authority for the purpose of commencing or sustaining a
case against the 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 Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust; provided, however, that this Section 10.08 shall not
operate to preclude any remedy described in Article V of the Indenture.
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SECTION 10.09. No Recourse. Each Person holding or owning a
Certificate, by accepting the Certificates, acknowledges that the Certificates
do not represent interest in or obligations of the Servicer, the Owner Trustee
(as such or in its individual capacity), the Indenture Trustee or any Affiliate
thereof (other than the Trust), and no recourse may be had against such parties
or their assets, or against the assets pledged under the Indenture, except as
expressly provided in the Transaction Documents.
SECTION 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
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 OWNERSHIP INTEREST CERTIFICATE BY THE OWNER AND THE
TRANSFEROR CERTIFICATE BY THE TRANSFEROR, WITHOUT ANY SIGNATURE OR FURTHER
MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
OWNER AND THE TRANSFEROR, RESPECTIVELY, OF ALL THE TERMS AND PROVISIONS OF THIS
AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND
PROVISIONS OF THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS AMONG
THE TRUST, THE OWNER AND THE TRANSFEROR.
SECTION 10.13. Integration of Documents. This Agreement constitutes
the entire agreement of the parties hereto and thereto with respect to the
subject matter hereof and supersedes all prior agreements relating to the
subject matter hereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ASSOCIATES CREDIT CARD RECEIVABLES CORP.,
as Transferor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
[Signature Page to Trust Agreement]
30
EXHIBIT A
Form of Ownership Interest Certificate
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (OR ANY
INTEREST HEREIN) MAY NOT BE TRANSFERRED TO ANY PERSON EXCEPT IN ACCORDANCE WITH
THE TRUST AGREEMENT.
ASSOCIATES CREDIT CARD MASTER NOTE TRUST
OWNER CERTIFICATE
R-1
(This Certificate does not represent an interest in or obligation of Associates
National Bank (Delaware), Associates Credit Card Receivables Corp., or any of
their affiliates, except to the extent described below.)
THIS CERTIFIES THAT ASSOCIATES CREDIT CARD RECEIVABLES CORP. is the
registered Owner of the Associates Credit Card Master Note Trust (the "TRUST").
The Trust was created pursuant to (i) the filing of the Certificate of
Trust with the Secretary of State of the State of Delaware and (ii) the
Associates Credit Card Master Note Trust Trust Agreement, dated as of April 1,
2000 (the "TRUST AGREEMENT"), between Associates Credit Card Receivables Corp.
(the "TRANSFEROR") and Wilmington Trust Company, as owner trustee (not in its
individual capacity but solely as owner trustee, the "OWNER TRUSTEE"). To the
extent not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement, including as specified in
subsection 1.02(a) of the Trust Agreement.
This Certificate is the duly authorized Certificate evidencing a
beneficial ownership interest in the Trust (herein called the "CERTIFICATE").
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, including the rights of the holder of the
Transferor Certificate to which Trust Agreement the holder by virtue of the
acceptance hereof assents and by which the holder is bound.
Notwithstanding any prior termination of the Trust Agreement, the
holder, by its acceptance of this Certificate, covenants and agrees that it
shall not at any time with respect to the Trust or the Transferor (if the
holder of this Certificate is not the Transferor), acquiesce, petition or
otherwise invoke or cause the Trust or the Transferor (if the holder of this
Certificate is not the Transferor) to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Trust or the Transferor (if the holder of this Certificate is not
the Transferor) under any federal or state bankruptcy, insolvency or similar
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31
law or appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust or the
Transferor (if the holder of this Certificate is not the Transferor) or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust or the Transferor (if the holder of this Certificate
is not the Transferor).
Unless the certificate of authentication hereon shall have been
executed by the Owner Trustee, by manual signature, this Certificate shall not
entitle the holder hereof to any benefit under the Trust Agreement, the
Transfer and Servicing Agreement or the Indenture or be valid for any purpose.
THIS CERTIFICATE 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 HOLDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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32
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
ASSOCIATES CREDIT CARD MASTER NOTE
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
Dated: ____________ __, 2000 By:
-----------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
-----------------------------------
Authorized Signatory
A-3
33
ANNEX 1 TO EXHIBIT A
Registered Owner and address:
Associates Credit Card Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 7 ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tax Identification Number: ▇▇▇▇▇▇▇▇▇
A-4
34
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION PROVISIONS.
THIS TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE
TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT REFERRED TO HEREIN.
No. R-__ One Unit
ASSOCIATES CREDIT CARD MASTER NOTE TRUST
TRANSFEROR CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST
IN CERTAIN ASSETS OF THE
ASSOCIATES CREDIT CARD MASTER NOTE TRUST
Evidencing an interest in a trust, the corpus of which consists primarily of
receivables generated from time to time in the ordinary course of business in a
portfolio of revolving credit card accounts transferred by Associates Credit
Card Receivables Corp. (the "TRANSFEROR").
(Not an interest in or obligation of the Transferor
or any affiliate thereof)
This certifies that ASSOCIATES CREDIT CARD RECEIVABLES CORP.
is the registered owner of an undivided beneficial interest in the assets of a
trust (the "TRUST"), subject to the lien of the Notes as provided in the Master
Indenture, dated as of April 1, 2000 (as amended and supplemented, the
"INDENTURE"), between The Bank of New York, as Indenture Trustee and the Trust,
established pursuant to the Trust Agreement, dated as of April 1, 2000 (as
amended and supplemented, the "TRUST AGREEMENT"), between the Transferor, and
Wilmington Trust Company, as owner trustee (not in its individual capacity, but
solely as owner trustee the "OWNER TRUSTEE"). The corpus of the Trust consists
of (a) a portfolio of certain receivables (the "RECEIVABLES") existing in the
revolving credit card accounts identified under the Transfer and Servicing
Agreement, dated as of April 1, 2000, as amended from time to time (the
"TRANSFER AND SERVICING AGREEMENT"), among the Transferor, Associates National
Bank (Delaware), as Servicer (the "SERVICER") and the Trust, as Issuer, from
time to time (the "ACCOUNTS"), (b) certain funds collected or to be collected
from accountholders in respect of the Receivables, (c) all funds which are from
time to time on deposit in the Collection Account, Special Funding Account and
in the Series Accounts, (d) the benefits of any Series Enhancements issued and
to
B-1
35
be issued by Series Enhancers with respect to one or more Series of Notes and
(e) all other assets and interests constituting the Trust, including
Interchange and Recoveries allocated to the Trust pursuant to the Transfer and
Servicing Agreement. Although a summary of certain provisions of the Transfer
and Servicing Agreement, the Trust Agreement and the Indenture (collectively,
the "AGREEMENTS") is set forth below, this Certificate does not purport to
summarize the Agreements and reference is made to the Agreements for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Owner Trustee. A copy of the Agreements may be requested from the Owner
Trustee by writing to the Owner Trustee at the Corporate Trust Office. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreements.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreements, to which Agreements, as amended
and supplemented from time to time, the Transferor by virtue of the acceptance
hereof assents and is bound.
The Receivables consist of Principal Receivables which arise
generally from the purchase of merchandise and services and amounts advanced to
cardholders as cash advances and Finance Charge Receivables which arise
generally from Periodic Rate Finance Charges, Late Fees and other fees and
charges with respect to the Accounts.
This Certificate (this "CERTIFICATE") is the Transferor
Certificate, which represents the undivided beneficial interest in certain
assets of the Trust, subject to the lien of the Notes, including the right to
receive a portion of the Collections and other amounts at the times and in the
amounts specified in the Indenture. In addition to the Transferor Certificate,
(a) Notes will be issued to investors pursuant to the Indenture and (b)
Supplemental Certificates may be issued pursuant to the Trust Agreement.
Unless otherwise specified in an Indenture Supplement with
respect to a particular Series, the Transferor has entered into the Transfer
and Servicing Agreement, and this Certificate is issued, with the intention
that, for federal, state and local income and franchise tax purposes, (a) the
Notes of each Series which are characterized as indebtedness at the time of
their issuance will qualify as indebtedness of the Transferor secured by the
Receivables and (b) the Trust shall not be treated as an association (or a
publicly traded partnership) taxable as a corporation. The Transferor by the
acceptance of this Certificate, agrees to treat the Notes for federal, state
and local income and franchise tax purposes as indebtedness of the Transferor.
Subject to certain conditions and exceptions specified in the
Agreements, the obligations created by the Agreements and the Trust created
thereby shall terminate upon the earlier of (a) at the option of the
Transferor, the day on which the rights of all Series of Notes to receive
payments from the Trust have terminated (the "Trust Termination Date") and (b)
dissolution of the Trust in accordance with applicable law.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Owner Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Agreement or be
valid for any purpose.
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36
IN WITNESS WHEREOF, the Trust has caused this Certificate to
be duly executed.
ASSOCIATES CREDIT CARD MASTER NOTE
TRUST
By: WILMINGTON TRUST COMPANY
not in its individual capacity,
but solely as Owner Trustee
By:
---------------------------------
Name:
Title:
Dated: [_________ __, ____]
B-3
37
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate described in the
within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By:
-------------------------------
Authorized Signatory
B-4
38
ANNEX 1 TO EXHIBIT B
Registered Owner and address:
Associates Credit Card Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 7 ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tax Identification Number: ▇▇▇▇▇▇▇▇▇
B-5
39
EXHIBIT C
FORM OF
CERTIFICATE OF TRUST OF
ASSOCIATES CREDIT CARD MASTER NOTE TRUST
THIS Certificate of Trust of Associates Credit Card Master Note Trust
(the "TRUST") is being duly executed and filed by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801 et seq.) (the "ACT").
1. Name. The name of the business trust created hereby is Associates
Credit Card Master Note Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust having its principal place of business in the State of Delaware are
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration.
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 of the Trust
Agreement
By:
------------------------------------
Name:
Title:
C-1