EXHIBIT 4.4
TRUST AGREEMENT
between
SPIEGEL CREDIT CORPORATION III,
as Seller,
and
BANKERS TRUST COMPANY,
as Owner Trustee
Dated as of December 1, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.............................................................................. 1
Section 1.1. Capitalized Terms................................................ 1
Section 1.2. ................................................................. 1
ARTICLE II
ORGANIZATION............................................................................. 2
Section 2.1. Name............................................................. 2
Section 2.2. Office........................................................... 2
Section 2.3. Purpose and Powers............................................... 2
Section 2.4. Appointment of Owner Trustee..................................... 3
Section 2.5. Initial Capital Contribution of Trust Estate..................... 3
Section 2.6. Declaration of Trust............................................. 3
Section 2.7. Title to Trust Property.......................................... 3
Section 2.8. Situs of Trust................................................... 3
Section 2.9. Representations and Warranties of Seller......................... 4
Section 2.10. Liability of Beneficiaries....................................... 5
ARTICLE III
BENEFICIAL INTERESTS..................................................................... 5
Section 3.1. Initial Ownership................................................ 5
Section 3.2. Form of Seller Interest.......................................... 5
Section 3.3. Reserved......................................................... 5
Section 3.4. Restrictions on Transfer; Issuance of Supplemental
Certificates.................................................... 6
ARTICLE IV
ACTIONS BY OWNER TRUSTEE................................................................. 7
Section 4.1. Prior Notice to Owner and Seller with Respect to
Certain Matters................................................. 7
Section 4.2. Restrictions on Power............................................ 7
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE.................................................... 8
Section 5.1. General Authority................................................ 8
Section 5.2. General Duties................................................... 8
Section 5.3. Action Upon Instruction.......................................... 8
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Section 5.4. No Duties Except as Specified in this Agreement or in
Instructions.................................................... 9
Section 5.5. No Action Except under Specified Documents or
Instructions.................................................... 10
Section 5.6. Restrictions..................................................... 10
ARTICLE VI
CONCERNING THE OWNER TRUSTEE............................................................. 10
Section 6.1. Acceptance of Trusts and Duties.................................. 10
Section 6.2. Furnishing of Documents.......................................... 12
Section 6.3. Representations and Warranties................................... 13
Section 6.4. Reliance; Advice of Counsel...................................... 13
Section 6.5. Not Acting in Individual Capacity................................ 14
Section 6.6. Owner Trustee Not Liable for Notes or Receivables................ 14
Section 6.7. Owner Trustee May Own Notes...................................... 14
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE............................................................ 15
Section 7.1. Owner Trustee's Fees and Expenses................................ 15
Section 7.2. Indemnification.................................................. 15
Section 7.3. Payments to the Owner Trustee.................................... 16
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT........................................................... 16
Section 8.1. Termination of Trust Agreement................................... 16
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES................................... 16
Section 9.1. Eligibility Requirements for Owner Trustee....................... 16
Section 9.2. Resignation or Removal of Owner Trustee.......................... 17
Section 9.3. Successor Owner Trustee.......................................... 17
Section 9.4. Merger or Consolidation of Owner Trustee......................... 18
Section 9.5. Appointment of Co-Trustee or Separate Trustee.................... 18
ARTICLE X
MISCELLANEOUS............................................................................ 20
Section 10.1. Supplements and Amendments....................................... 20
Section 10.2. No Legal Title to Trust Estate in Seller......................... 22
Section 10.3. Limitations on Rights of Others.................................. 22
Section 10.4. Notices.......................................................... 22
Section 10.5. Severability..................................................... 22
Section 10.6. Separate Counterparts............................................ 22
Section 10.7. Successors and Assigns........................................... 22
Section 10.8. Non-petition Covenants........................................... 23
Section 10.9. No Recourse...................................................... 23
Section 10.10. Headings......................................................... 23
Section 10.11. Governing Law.................................................... 23
Section 10.12. Integration of Documents......................................... 24
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TRUST AGREEMENT, dated as of December 1, 2000 (this "Agreement"), between
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SPIEGEL CREDIT CORPORATION III, a Delaware corporation, as Seller, and BANKERS
TRUST COMPANY, a New York banking corporation as Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.1. Capitalized Terms. Capitalized terms used herein and not
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otherwise defined herein are defined in Annex A to the Master Indenture, dated
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as of the date hereof, between Spiegel Credit Card Master Note Trust and The
Bank of New York.
Section 1.2. Other Definitional Provisions. All terms defined directly or
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by reference in this Agreement shall have the defined meanings when used in any
certificate or other document delivered pursuant hereto unless otherwise defined
therein. For purposes of this Agreement and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in this
Agreement to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the State of Illinois and not otherwise
defined in this Agreement are used as defined in that Article; (c) any reference
to each Rating Agency shall only apply to any specific rating agency if such
rating agency is then rating any outstanding Series; (d) references to any
amount as on deposit or outstanding on any particular date means such amount at
the close of business on such day; (e) the words "hereof", "herein" and
"hereunder" and words of similar import refer to this Agreement (or the
certificate or other document in which they are used) as a whole and not to any
particular provision of this Agreement (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the certificate or other
document in which the reference is made), and references to any paragraph,
Section, clause or other subdivision within any Section or definition refer to
such paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including"" means "including" without limitation"; (h)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to
any Person include that Person's successors and assigns; and (j) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
Section 2.1. Name. The trust created hereby shall be known as "Spiegel
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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 2.2. Office. The office of the Trust shall be in care of the Owner
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Trustee at the Corporate Trust Office or at such other address in the United
States as the Owner Trustee may designate by written notice to the Owner, the
Indenture Trustee and the Seller.
Section 2.3. Purpose and Powers. The purpose of the Trust is to engage in
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the activities set forth in this Section 2.3. The Trust shall have power and
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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 2.3 as follows:
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(i) to execute, deliver and issue the Notes pursuant to the
Indenture, to issue the Seller Interest and to execute, issue and deliver
the Supplemental Certificates, if any, pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes, to acquire the Trust
Estate and to pay the Seller the amounts owed pursuant to Section 2.1 of
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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 holders of the
Seller Interest 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
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(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 Seller.
The Trust shall not have power, authority or authorization to, and shall not,
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the Transaction Documents.
Section 2.4. Appointment of Owner Trustee. The Seller hereby appoints the
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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 2.5. Initial Capital Contribution of Trust Estate. The Seller
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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 Seller, 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 Seller 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.
Section 2.6. Declaration of Trust. The Owner Trustee hereby declares that
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it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of the Seller, 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 trust under the laws
of the State of Illinois and that this Agreement constitute the governing
instrument of such trust. It is the intention of the parties hereto that, for
income tax purposes, the Trust shall be treated as a security device and
disregarded as an entity and its assets shall be treated as owned in whole by
the Seller. 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 laws of the State of Illinois with respect to
accomplishing the purposes of the Trust.
Section 2.7. Title to Trust Property. Legal title to all the Trust Estate
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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 2.8. Situs of Trust. The Trust will be located and administered in
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the State of New York. All bank accounts maintained by the Owner Trustee on
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behalf of the Trust shall be located in the State of New York. The Trust shall
not have any employees in any state other than New York or Illinois; provided,
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however, that nothing herein shall restrict or prohibit the Owner Trustee from
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having employees within or without the State of New York. Payments will be
received by the Trust only in New York or Illinois, and payments will be made by
the Trust only from New York or Illinois. The only office of the Trust will be
at the Corporate Trust Office.
Section 2.9. Representations and Warranties of Seller. The Seller hereby
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represents and warrants to the Owner Trustee (as such or in its individual
capacity) that:
(a) The Seller 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 the Transaction
Documents to which it is a party and to perform its obligations as contemplated
thereby.
(b) The Seller 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 Seller, 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 the Transaction Documents to which it is a
party.
(c) The execution and delivery of this Agreement and the consummation of
the transactions provided for the Transaction Documents to which the Seller is a
party have been duly authorized by the Seller by all necessary corporate action
on its part. The Seller has the power and authority to assign the property to be
assigned to and deposited with the Trust pursuant to Section 2.5 of this
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Agreement and Section 2.1 of the Transfer and Servicing Agreement.
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(d) The execution and delivery of the Transaction Documents to which the
Seller is a party, the performance of the transactions contemplated by such the
Transaction Documents and the fulfillment of the terms hereof and thereof will
not conflict with or violate any Requirements of Law applicable to the Seller,
or 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 Seller 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
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adverse effect on the Seller's ability to perform its obligations under this
Agreement).
(e) There are no proceedings or investigations pending or, to the best
knowledge of the Seller, threatened, against the Seller before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over the Seller (i) asserting the invalidity
of any of the Transaction Documents to which the Seller is a party, (ii) seeking
to prevent the consummation of any of the transactions contemplated by any of
the Transaction Documents to which the Seller is a party, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller, would
materially and adversely affect the performance by the Seller of its obligations
under the Transaction Documents to which the Seller 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 Seller is a
party.
(f) This Agreement is legal, valid and enforceable against the Seller.
Section 2.10. Liability of Beneficiaries. The holders of the Seller
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Interest shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
ARTICLE III
BENEFICIAL INTERESTS
Section 3.1. Initial Ownership. The Seller, as the holder of the Seller
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Interest (i) shall initially be the only beneficial owner of the Trust and (ii)
shall be bound by the provisions of this Trust Agreement.
Section 3.2. Form of Seller Interest. The Seller Interest shall be an
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uncertificated interest in the Trust.
Section 3.3. [Reserved]
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Section 3.4. Restrictions on Transfer; Issuance of Supplemental
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Certificates. At any time the Seller may sell, transfer, assign, participate,
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pledge or otherwise dispose of the Seller Interest (or any interest therein) or
may direct the Owner Trustee to issue a certificate (a "Supplemental
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Certificate"), the form and terms of which shall be defined in a supplement (a
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"Seller Certificate Supplement") to this Agreement (which Seller Certificate
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Supplement shall be subject to Section 10.1 to the extent that it amends any of
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the terms of this Agreement) to be delivered to or upon the order of the Seller.
The sale, transfer, assignment,
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participation, pledge or other disposition of the Seller Interest to any Person
other than an Affiliate of Seller or the issuance of any such Supplemental
Certificate to any Person other than an Affiliate of Seller shall be subject to
satisfaction of the following conditions:
(i) on or before the fifth day immediately preceding the issuance,
the Seller 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 action;
(ii) the Seller shall have delivered to the Owner Trustee and the
Indenture Trustee any related Seller Certificate Supplement in form
satisfactory to the Owner Trustee and the Indenture Trustee, executed by
each party hereto, in the case of the issuance of any Supplemental
Certificate;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such action;
(iv) such action will not result in any Adverse Effect and the Seller
shall have delivered to the Owner Trustee and the Indenture Trustee an
Officer's Certificate, dated the date of such action to the effect that the
Seller reasonably believes that such action 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 such action have been satisfied;
(v) the Seller 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 action with respect to such action and Opinions of Counsel
to the effect that (A) such action will not subject the Trust to any state
income tax or to the Illinois Personal Property Replacement Tax, and (B)
such action, assignment, participation, pledge or other disposition does
not require registration of the interest under the Securities Act or any
state securities law except for any such registration that has been duly
completed and become effective; and
(vi) the Aggregate Principal Balance shall not be less than the
Minimum Aggregate Principal Balance, as of the date of such action after
giving effect to such action.
Notwithstanding the foregoing, any Supplemental Certificate or any interest in
the Seller Interest held by the Seller or any other 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 Indenture Trustee of a Tax Opinion dated as of
the date of such transfer
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or exchange, as the case may be, with respect to such transfer or exchange, and
compliance with any applicable Seller Certificate Supplement.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. Prior Notice to Owner and Seller with Respect to Certain
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Matters. With respect to the following matters, unless otherwise instructed by
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the Seller, 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
Seller:
(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 amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) 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 Seller;
(d) 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 Seller; or
(e) the appointment pursuant to the Indenture of a replacement or successor
Transfer Agent and Registrar or Indenture Trustee, or the consent to the
assignment by the Transfer Agent and Registrar, Administrator or Indenture
Trustee of its obligations under the Indenture.
Section 4.2. Restrictions on Power. The Owner Trustee shall not be required
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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 2.3.
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(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 by the Transaction Documents.
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.1. General Authority. Each of the Trust and the Owner Trustee in
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the name and on behalf of the Trust shall have power and authority, and is
hereby authorized and empowered, to execute and deliver the Transaction
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Transaction Documents
to which the Trust is to be a party, or any amendment thereto or other
agreement, in each case, in such form as the Seller shall approve as evidenced
conclusively by the Owner Trustee's execution thereof and the Seller'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
Seller or the Administrator directs in writing with respect to the Transaction
Documents.
Section 5.2. General Duties. It shall be the duty of the Owner Trustee to
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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 Seller,
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 5.3. Action Upon Instruction.
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(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
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under the circumstances) to the Seller 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 Seller
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 Seller, 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, 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 Seller 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 Seller, and shall have no personal
liability to any Person for such action or inaction.
Section 5.4. No Duties Except as Specified in this Agreement or in
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Instructions. The Owner Trustee shall not have any duty or obligation to manage,
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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 5.3; and no
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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
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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 5.5. No Action Except under Specified Documents or Instructions.
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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 5.3.
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Section 5.6. Restrictions. The Owner Trustee shall not take any action (a)
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that, to the actual knowledge of a Responsible Officer of the Owner Trustee,
would violate the purposes of the Trust set forth in Section 2.3 or (b) that, to
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the actual knowledge of a Responsible Officer of the Owner Trustee, would result
in the Trust's becoming taxable as a corporation for federal income tax
purposes. The Seller shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 5.6.
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Section 5.7. Tax Returns. In the event the Trust shall be required to file
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tax returns, the Issuer shall prepare or shall cause to be prepared such tax
returns and shall provide such tax returns to the Owner Trustee for signature at
least five (5) days before such tax returns are due to be filed. The Issuer, in
accordance with the terms of each Indenture Supplement, shall also prepare or
shall cause to be prepared all tax information required by law to be distributed
to Noteholders and shall deliver such information to the Owner Trustee at least
five (5) days prior to the date it is required by law to be distributed to
Noteholders. The Owner Trustee, upon request, will furnish the Issuer with all
such information known to the Owner Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust, and shall, upon
request, execute such returns. In no event shall the Owner Trustee or the
Indenture Trustee be liable for any liabilities, costs or expenses of the Trust
or any Noteholder arising under any tax law, including federal, state or local
income or excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto arising from a failure to comply
therewith).
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.1. Acceptance of Trusts and Duties. The Owner Trustee accepts the
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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
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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, bad faith or
gross negligence in the performance of its duties or the omission to perform any
such duties or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 6.3 expressly made by the Owner Trustee in its
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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 Seller;
(c) the Owner Trustee shall not be personally liable for any error of
judgment made in good faith by the Holder of the Supplemental Certificate;
(d) 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);
(e) 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;
(f) 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 Seller or the form, character, genuineness, sufficiency, value or validity
of any of the Trust Estate, the Transaction Documents, the Notes or the Seller
Interest, 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;
(g) the Owner Trustee shall not be personally liable for the default or
misconduct of the Seller, 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
11
obligations of the Trust under the Transaction Documents, including those that
are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer under the
Transfer and Servicing Agreement;
(h) 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 any
Transaction Document, at the request, order or direction of the Seller, unless
the Seller 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
any 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 gross negligence, bad faith or willful misconduct in the performance of any
such act or the omission to perform any such act; and
(i) 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 New York or Illinois 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 New York or Illinois 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 New York or Illinois 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 New York or Illinois 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 Seller) 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 Seller shall appoint an additional trustee
pursuant to Section 9.5 to proceed with such action.
-----------
Section 6.2. Furnishing of Documents. The Owner Trustee shall furnish to
-----------------------
the Seller and the Indenture Trustee, promptly upon written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial
12
statements and any other instruments furnished to the Owner Trustee under the
Transaction Documents.
Section 6.3. Representations and Warranties. The Owner Trustee (as such and
------------------------------
in its individual capacity) hereby represents and warrants to the Seller that:
(a) It is a New York banking corporation duly organized and validly
existing in good standing under the laws of the State of New York. It is
qualified as a foreign fiduciary under the laws of the State of Illinois. It has
all requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof will contravene any federal, New York
or Illinois 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 6.4. 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
13
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 6.5. Not Acting in Individual Capacity. Except as expressly
---------------------------------
provided in this Article VI, in accepting the trusts hereby created, Bankers
----------
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 6.6. Owner Trustee Not Liable for Notes or Receivables. The
-------------------------------------------------
statements contained herein and in the Notes and other Transaction Documents
(other than the representations and warranties in Section 6.3) shall be taken as
-----------
the statements of the Seller, 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 or any other Transaction Document,
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 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 Seller 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 6.7. 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 Seller, 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.
14
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.1. 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
Seller and the Owner Trustee (in its individual capacity) (which compensation
shall not be limited by any law on compensation of a trustee of an express
trust), and the Owner Trustee (in its individual capacity) shall be entitled to
be reimbursed by the Seller 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 shall have no recourse to the assets pledged under the Indenture with
respect to any payments pursuant to this Section 7.1 and the Owner Trustee's
-----------
right to enforce such obligation shall be subject to the provisions of Section
-------
10.8.
----
Section 7.2. Indemnification. To the fullest extent permitted by law, the
---------------
Seller 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 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 Seller shall not be liable for
--------
or required to indemnify any Indemnified Party from and against Expenses arising
or resulting from any of the matters described in the third sentence of Section
-------
6.1 or Expenses for which indemnification is actually received under other
---
Transaction Documents; provided further that the Seller 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 gross negligence, or (ii) the inaccuracy of any representation or warranty
contained in Section 6.3. No Indemnified Party shall have recourse to the assets
-----------
pledged under the Indenture with respect to any Expenses payable by the Seller
pursuant to this Section 7.2. An Indemnified Party's right to enforce such
-----------
obligation shall be subject to the provisions of Section 10.8. The indemnities
------------
contained in this Section 7.2 shall survive the resignation and termination of
-----------
the Owner Trustee or the termination of this Agreement.
15
Section 7.3. 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 8.1. Termination of Trust Agreement.
------------------------------
(a) The Trust shall dissolve upon the date specified by the Seller (the
"Scheduled Trust Termination Date", written notice of which shall be provided to
--------------------------------
the Owner Trustee), provided that the Scheduled Trust Termination Date shall not
--------
be earlier than the day on which the rights of all Series of Notes to receive
payments from the Trust have terminated, and shall in no event be later than the
Scheduled Trust Termination Date. 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 Seller. The
bankruptcy, liquidation, dissolution, termination, death or incapacity of the
Seller shall not (x) operate to terminate this Agreement or annul, dissolve or
terminate the Trust, or (y) entitle the Seller's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Estate or (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a), the Seller shall not be entitled
--------------
to revoke, dissolve or terminate the Trust. The Owner shall not be entitled to
revoke, dissolve or terminate the Trust.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.1. Eligibility Requirements for Owner Trustee. The Owner Trustee
------------------------------------------
shall at all times be a Person within the State of Illinois, or authorized to
act as a foreign fiduciary within the State of Illinois; authorized to exercise
trust powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent which has) a rating of at least Baa3 by ▇▇▇▇▇'▇, at
least BBB- by Standard & Poor's and, if rated by Fitch, at least BBB- by Fitch,
or otherwise satisfactory to each Rating Agency. If such Person shall publish
reports of condition at least
16
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 9.1, the combined
-----------
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section 9.1, the Owner Trustee shall resign immediately
-----------
in the manner and with the effect specified in Section 9.2.
-----------
Section 9.2. Resignation or Removal of Owner Trustee. The Owner Trustee may
---------------------------------------
at any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Seller; 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 Seller 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 Seller 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 9.1 and shall fail to resign after written
-----------
request therefor by the Seller, 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
Seller may, but shall not be required to, remove the Owner Trustee. If the
Seller shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Seller 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 9.2
-----------
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.3 and, in the case of removal, payment of
-----------
all fees and expenses owed to the outgoing Owner Trustee (as such or in its
individual capacity). The Seller shall provide notice of such resignation or
removal of the Owner Trustee to each Rating Agency.
17
Section 9.3. Successor Owner Trustee. Any successor Owner Trustee appointed
-----------------------
pursuant to Section 9.2 shall execute, acknowledge and deliver to the Seller 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 Seller and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for fully and certainly vesting and confirming in the successor Owner Trustee
all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.3 unless at the time of such acceptance such successor Owner Trustee
-----------
shall be eligible pursuant to Section 9.1.
-----------
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.3, the Seller shall mail notice of such acceptance of appointment
-----------
including the name of such successor Owner Trustee to the Seller, the Indenture
Trustee, the Noteholders and each Rating Agency. If the Seller 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 Seller.
Section 9.4. 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 9.1), without the execution or
-----------
filing of any instrument or any further act on the part of any of the parties
hereto; provided further that the Owner Trustee shall mail notice of such merger
-------- -------
or consolidation to each Rating Agency and each Series Enhancer.
Section 9.5. Appointment of Co-Trustee or Separate Trustee. Notwithstanding
---------------------------------------------
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Estate
may at the time be located, the Seller and the Owner Trustee acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or
18
more Persons approved by each of the Seller 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 9.5, such powers, duties, obligations, rights
-----------
and trusts as the Seller and the Owner Trustee may consider necessary or
desirable. If the Seller 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 9.1 and no notice of the
-----------
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 9.3.
-----------
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon 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 Seller 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
19
affording protection to, the Owner Trustee. Each such instrument shall be filed
with the Owner Trustee and a copy thereof given to the Seller.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE X
MISCELLANEOUS
Section 10.1. Supplements and Amendments. This Agreement may be amended
--------------------------
from time to time, by a written amendment duly executed and delivered by the
Seller and the Owner Trustee, without the consent of any of the Noteholders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
to add any other provisions with respect to matters or questions raised under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that the Rating Agency Condition is satisfied and
-------- -------
such amendment will not, as evidenced by an Officer's Certificate of the Seller
addressed and delivered to the Owner Trustee and the Indenture Trustee,
materially and adversely affect the interest of any Noteholder. In addition,
this Agreement may be amended from time to time, by a written amendment duly
executed and delivered by the Seller and the Owner Trustee, without the consent
of any of the Noteholders, and upon satisfaction of the Rating Agency Condition,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any manner
the rights of the Noteholders; provided, however, that such amendment will not
-------- -------
(i) as evidenced by an Officer's Certificate of the Seller addressed and
delivered to the Owner Trustee and the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or the Owner 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 2.3 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 Seller 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
20
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 Seller 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 Seller may make without the
consent of Noteholders pursuant to the preceding sentence may include the
addition of a Seller of Receivables.
This Agreement may also be amended from time to time by a written amendment
duly executed and delivered by the Seller and the Owner Trustee, with the
consent of the Indenture Trustee and the Holders of Notes evidencing not less
than 66 2/3% of the Outstanding Amount of the Notes, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that 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 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 Seller 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 SFAS Statement No.
125 or 140 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 Seller
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 10.1 to approve the particular form of any proposed amendment or
------------
consent, but it shall be sufficient if such consent shall approve the substance
thereof
The Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer's Certificate of the Seller 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
21
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 10.2. No Legal Title to Trust Estate in Seller. The Seller 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 Seller to and in
its undivided beneficial interest in the Trust Estate shall operate to terminate
this Agreement or annul, dissolve or terminate the Trust or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
Section 10.3. Limitations on Rights of Others. The provisions of this
-------------------------------
Agreement are solely for the benefit of the Owner Trustee (as such or in its
individual capacity), the other Indemnified Parties, the Seller, 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 10.4. Notices. Unless otherwise expressly specified or permitted by
-------
the terms hereof, all notices and other communications shall be in writing and
shall be deemed given upon receipt by the intended recipient or three (3)
Business Days after mailing if mailed by certified mail, postage prepaid (except
that notice to the Owner Trustee, the Seller or Indenture Trustee shall be
deemed given only upon actual receipt by the Owner Trustee, the Seller 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 Seller, addressed
to Spiegel Credit Corporation III, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Treasurer; or, as to each party, at such other address as
shall be designated by such party in a written notice to each other party.
Section 10.5. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.6. Separate Counterparts. This Agreement may be executed by the
---------------------
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
22
Section 10.7. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, the Seller
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 Seller shall
bind the successors and assigns of the Seller.
Section 10.8. Non-petition Covenants. Notwithstanding any prior termination
----------------------
of the Trust or this Agreement, Bankers Trust Company, individually or in its
capacity as Owner Trustee, shall not at any time with respect to the Trust,
Spiegel Master Trust or the Seller, acquiesce, petition or otherwise invoke or
cause the Trust or the Seller to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Trust,
Spiegel Master Trust or the Seller 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, Spiegel Master Trust or the Seller or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Trust,
Spiegel Master Trust or the Seller; provided, however, that this Section 10.8
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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
Seller shall not at any time with respect to the Trust or Spiegel Master Trust,
acquiesce, petition or otherwise invoke or cause the Trust or Spiegel Master
Trust to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Trust or Spiegel Master
Trust under any federal or state bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or Spiegel Master Trust or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Trust or Spiegel Master Trust; provided, however, that
-------- -------
this Section 10.8 shall not operate to preclude any remedy described in Article
------------ -------
V of the Indenture.
-
Section 10.9. No Recourse. Each Person holding or owning the Seller
-----------
Interest (or any interest therein), by accepting the Seller Interest (or its
interest therein), acknowledges that the Seller Interest does not represent an
interest in or obligation 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.
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Section 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration of Documents. This Agreement constitutes the
------------------------
entire agreement of the parties hereto and thereto with respect to the subject
matter hereof and supersedes all prior agreements relating to the subject matter
hereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
BANKERS TRUST COMPANY,
as Owner Trustee
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SPIEGEL CREDIT CORPORATION III,
as Seller
Name: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
Signature page to
Trust Agreement
25