EXHIBIT 4.7 - TRUST AGREEMENT
[EXECUTION COPY]
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TRUST AGREEMENT
Dated as of July 1, 2002
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DC FUNDING INTERNATIONAL, INC.
Transferor
and
WILMINGTON TRUST COMPANY
Owner Trustee
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FNANB CREDIT CARD MASTER NOTE TRUST
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TABLE OF CONTENTS
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PAGE
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ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms ....................................................................... 1
Section 1.2 Other Definitional Provisions ........................................................... 1
ARTICLE II
ORGANIZATION
Section 2.1 Name .................................................................................... 1
Section 2.2 Office .................................................................................. 2
Section 2.3 Purpose and Powers ...................................................................... 2
Section 2.4 Appointment of Owner Trustee ............................................................ 3
Section 2.5 Capital Contribution of Trust Estate .................................................... 3
Section 2.6 Declaration of Trust .................................................................... 3
Section 2.7 Title to Trust Property ................................................................. 3
Section 2.8 Situs of Trust .......................................................................... 3
Section 2.9 Representations and Warranties of Transferor ............................................ 3
Section 2.10 Liability of Beneficiaries .............................................................. 4
ARTICLE III
BENEFICIAL INTERESTS
Section 3.1 Initial Ownership ....................................................................... 5
Section 3.2 Exchangeable Transferor Certificate ..................................................... 5
Section 3.3 Form of Transferor Interest ............................................................. 5
Section 3.4 Restrictions on Transfer; Issuance of Supplemental Interests ............................ 5
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Transferor with Respect to Certain Matters .............................. 6
Section 4.2 Restrictions on Power ................................................................... 6
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.1 General Authority ....................................................................... 7
Section 5.2 General Duties .......................................................................... 7
Section 5.3 Action Upon Instruction ................................................................. 7
Section 5.4 No Duties Except as Specified in this Agreement or in Instructions ...................... 8
Section 5.5 No Action Except under Transaction Documents or Instructions ............................ 8
Section 5.6 Restrictions ............................................................................ 9
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Section 5.7 Tax Returns .......................................................................................... 9
Section 5.8 Confidentiality ...................................................................................... 9
ARTICLE VI
CONCERNING OWNER TRUSTEE
Section 6.1 Acceptance of Trusts and Duties ...................................................................... 9
Section 6.2 Furnishing of Documents .............................................................................. 11
Section 6.3 Representations and Warranties ....................................................................... 11
Section 6.4 Reliance; Advice of Counsel .......................................................................... 12
Section 6.5 Not Acting in Individual Capacity .................................................................... 12
Section 6.6 Owner Trustee Not Liable for Notes or Receivables .................................................... 12
Section 6.7 Owner Trustee May Own Notes .......................................................................... 13
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.1 Owner Trustee's Fees and Expenses .................................................................... 13
Section 7.2 Indemnification ...................................................................................... 13
Section 7.3 Payments to Owner Trustee ............................................................................ 14
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.1 Termination of Trust Agreement ....................................................................... 14
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.1 Eligibility Requirements for Owner Trustee ........................................................... 15
Section 9.2 Resignation or Removal of Owner Trustee .............................................................. 15
Section 9.3 Successor Owner Trustee .............................................................................. 16
Section 9.4 Merger or Consolidation of Owner Trustee ............................................................. 16
Section 9.5 Appointment of Co-Trustee or Separate Trustee ........................................................ 16
ARTICLE X
MISCELLANEOUS
Section 10.1 Supplements and Amendments ........................................................................... 18
Section 10.2 No Legal Title to Trust Estate in Transferor ......................................................... 19
Section 10.3 Limitations on Rights of Others ...................................................................... 19
Section 10.4 Notices .............................................................................................. 19
Section 10.5 Severability ......................................................................................... 20
Section 10.6 Separate Counterparts ................................................................................ 20
Section 10.7 Successors and Assigns ............................................................................... 20
Section 10.8 Non-petition Covenants ............................................................................... 20
Section 10.9 No Recourse .......................................................................................... 20
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Section 10.10 Headings ................................................ 21
Section 10.11 GOVERNING LAW ........................................... 21
Section 10.12 Integration of Documents ................................ 21
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TRUST AGREEMENT, dated as of July 1, 2002 (this "Agreement"),
between DC FUNDING INTERNATIONAL, INC., a Delaware corporation, as Transferor,
and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. Capitalized terms used herein and
not otherwise defined herein are defined in Annex A to the Master Indenture,
dated as of the date hereof, between FNANB Credit Card Master Note Trust and
JPMorgan Chase Bank, as Indenture Trustee.
Section 1.2 Other Definitional Provisions. All terms defined
directly or by reference in this Agreement shall have the defined meanings when
used in any certificate or other document delivered pursuant hereto unless
otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in this Agreement, and accounting terms
partly defined in this Agreement to the extent not defined, shall have the
respective meanings given to them under GAAP; (b) terms defined in Article 9 of
the UCC as in effect in the State of Delaware and not otherwise defined in this
Agreement are used as defined in that Article; (c) any reference to each Rating
Agency shall only apply to any specific rating agency if such rating agency is
then rating any outstanding Series; (d) references to any amount as on deposit
or outstanding on any particular date means such amount at the close of business
on such day; (e) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement (or the certificate or other document in
which they are used) as a whole and not to any particular provision of this
Agreement (or such certificate or document); (f) references to any Section,
Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to
this Agreement (or the certificate or other document in which the reference is
made), and references to any paragraph, Section, clause or other subdivision
within any Section or definition refer to such paragraph, subsection, clause or
other subdivision of such Section or definition; (g) the term "including" means
"including without limitation"; (h) references to any law or regulation refer to
that law or regulation as amended from time to time and include any successor
law or regulation; (i) references to any Person include that Person's successors
and assigns; and (j) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
Section 2.1 Name. The trust created hereby shall be known as
"FNANB Credit Card Master Note Trust," in which name the Trust and Owner Trustee
on behalf of the Trust each shall have power and authority and is hereby
authorized and empowered to and may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and ▇▇▇ and be
sued. The Trust's fiscal year shall end on the last day of each February.
Section 2.2 Office. The office of the Trust shall be in care of
Owner Trustee at the Corporate Trust Office or at such other address in the
United States as Owner Trustee may designate by written notice to Transferor and
Indenture Trustee.
Section 2.3 Purpose and Powers. The purpose of the Trust is to
engage in the activities set forth in this Section 2.3. The Trust shall have
power and authority and is hereby authorized and empowered, without the need for
further action on the part of the Trust, and Owner Trustee shall have power and
authority, and is hereby authorized and empowered, in the name and on behalf of
the Trust, to do or cause to be done all acts and things necessary, appropriate
or convenient to cause the Trust, to engage in the activities set forth in this
Section 2.3 as follows:
(i) to execute, deliver and issue the Notes pursuant to
the Indenture, to issue the Exchangeable Transferor Certificate and to
issue the Supplemental Interests, if any, pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes, to acquire
the Trust Estate and, subject to the provisions of this Section 2.3,
any futures, forwards, swaps, interest rate caps or other passive
derivate financial instruments with similar characteristics, and to pay
to Transferor the amounts owed pursuant to Section 2.1 of the Transfer
and Servicing Agreement;
(iii) to assign, grant, pledge and mortgage the Collateral
pursuant to the Indenture and to hold, manage and distribute to the
Holder of the Exchangeable Transferor Certificate pursuant to the terms
of this Agreement and the Transaction Documents any portion of the
Collateral released from the lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into, execute, deliver and perform the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents,
to engage in such other activities as may be required in connection
with conservation of the Trust Estate and the making of payments to the
Noteholders and distributions to the Holder of the Exchangeable
Transferor Certificate.
The Trust shall not have power, authority or authorization to, and shall not,
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the Transaction Documents. The Trust shall have no
power to hold any derivative financial instrument unless such derivative
financial instrument complies with the requirements of paragraph 40 of Statement
of Financial Accounting Standards No. 140 issued by the Financial Accounting
Standards Board, including any interpretations thereof or any successor
regulations issued by the Financial Accounting Standards Board.
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Section 2.4 Appointment of Owner Trustee Transferor hereby
appoints Owner Trustee as trustee of the Trust effective as of the date hereof,
to have all the rights, powers and duties set forth herein and in the Business
Trust Statute.
Section 2.5 Capital Contribution of Trust Estate. Pursuant to the
Transfer and Servicing Agreement, Transferor shall assign, transfer, convey and
set over to the Trust, as of the Initial Closing Date, the assets specified in
the Transfer and Servicing Agreement. Owner Trustee hereby acknowledges receipt
in trust from Transferor, as of the date hereof, of the foregoing contribution,
which shall constitute part of the Trust Estate and shall be held by Owner
Trustee on behalf of the Trust. Transferor shall pay organizational expenses of
the Trust as they may arise or shall, upon the request of Owner Trustee,
promptly reimburse Owner Trustee for any such expenses paid by Owner Trustee.
Section 2.6 Declaration of Trust. Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of Transferor, subject to the
obligations of the Trust under the Transaction Documents to which it is a party,
and shall file a certificate of trust substantially in the form of Exhibit A. It
is the intention of the parties hereto that the Trust constitute a business
trust under the Business Trust Statute and that this Agreement constitute the
governing instrument of such trust. It is the intention of the parties hereto
that, for income tax purposes, the Trust shall be treated as a security device
and not as an entity separate from Transferor and its assets shall be treated as
owned in whole by Transferor. The parties hereto agree that they will take no
action contrary to the foregoing intention. Effective as of the date hereof,
Owner Trustee shall have all rights, powers and authority set forth herein and,
to the extent not inconsistent herewith, in the Business Trust Statute with
respect to accomplishing the purposes of the Trust.
Section 2.7 Title to Trust Property. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.8 Situs of Trust. The Trust will be located and
administered in the State of Delaware. All bank accounts maintained by, or on
behalf of, the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office.
Section 2.9 Representations and Warranties of Transferor.
Transferor hereby represents and warrants to Owner Trustee (as such or in its
individual capacity) that:
(a) Organization and Good Standing. Transferor is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has full power, authority and legal right to own its
properties and conduct its business as such
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properties are presently owned and such business is presently conducted, to
execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirements) and has
obtained all necessary licenses and approvals with respect to Transferor, in
each jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a materially adverse effect on its ability to perform its
obligations under the this Agreement.
(c) Due Authorization. The execution, delivery and performance of
this Agreement by Transferor and the consummation by Transferor of the
transactions provided for in this Agreement have been duly authorized by
Transferor by all necessary action on the part of Transferor.
(d) No Violation. The execution and delivery of this Agreement by
Transferor, the performance by Transferor of the transactions contemplated by
this Agreement and the fulfillment by Transferor of the terms hereof will not
conflict with, violate or result in any breach of any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both) a
default under, any Requirement of Law applicable to Transferor or any material
indenture, contract, agreement, mortgage, deed of trust or other instrument to
which Transferor is a party or by which it or any of its properties are bound.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of Transferor, threatened against Transferor
before any court, regulatory body, administrative agency, arbitrator or other
tribunal or governmental instrumentality (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or ruling that,
in the reasonable judgment of Transferor, would materially and adversely affect
the performance by Transferor of its obligations under this Agreement or (iv)
seeking any determination or ruling that would materially and adversely affect
the validity or enforceability of this Agreement.
(f) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental Authority
required to be obtained on or prior to the date as of which this representation
is being made in connection with the execution and delivery by Transferor of
this Agreement, the performance by Transferor of the transactions contemplated
by this Agreement and the fulfillment by Transferor of the terms hereof, have
been obtained.
(g) Enforceability. This Agreement is legal, valid and
enforceable against Transferor.
Section 2.10 Liability of Beneficiaries. The Holder of the
Exchangeable Transferor Certificate, including the Holders of the Supplemental
Interests, if any, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
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ARTICLE III
BENEFICIAL INTERESTS
Section 3.1 Initial Ownership. Transferor, as the Holder of the
Exchangeable Transferor Certificate (i) shall initially be the only beneficial
owner of the Trust and (ii) shall be bound by the provisions of this Trust
Agreement.
Section 3.2 Exchangeable Transferor Certificate. The Exchangeable
Transferor Certificate shall represent an undivided beneficial interest in the
Trust Estate subject to the lien of the Notes created pursuant to the Indenture,
including the right to receive Collections with respect to the Receivables and
other amounts at the times and in the amounts specified in the Indenture and any
Indenture Supplement to be paid to the Holder of the Exchangeable Transferor
Certificate.
Section 3.3 Form of Transferor Interest. The Transferor Interest
shall be evidenced by the Exchangeable Transferor Certificate.
Section 3.4 Restrictions on Transfer; Issuance of Supplemental
Interests. (a) The Holder of the Exchangeable Transferor Certificate may tender
the Exchangeable Transferor Certificate, or the Exchangeable Transferor
Certificate and the Notes of any Series, to Owner Trustee in exchange for (i)
one or more newly issued Notes and (ii) a reissued Exchangeable Transferor
Certificate (any such tender an "Exchange"). The form and terms of any Exchange
shall be defined in a supplement to this Agreement (which supplement shall be
subject to Section 10.1 to the extent that it amends any of the terms of this
Agreement) to be delivered to or upon the order of Transferor (or the holder of
the Exchangeable Transferor Certificate). The tender of any such Exchange to any
Person shall be subject to the following conditions: (a) Indenture Trustee and
Owner Trustee shall have received an Opinion of Counsel to the effect that,
unless otherwise specified in the related supplement, the newly issued Series of
Notes (other than any Class of Notes required to be retained by Transferor) will
be characterized as either indebtedness or an interest in a partnership (that is
not taxable as a corporation) under existing law for Federal income tax purposes
and that the issuance of the newly issued Series of Notes will not have any
material adverse impact on the Federal income tax characterization of any
outstanding Series of Notes that have been the subject of a previous opinion of
tax counsel or result in the Trust being taxable as an association or as a
publicly traded partnership taxable as a corporation for Federal or applicable
state tax purposes (such opinion, a "Tax Opinion"), (b) Indenture Trustee shall
have received an agreement, if any, pursuant to which the Enhancement Provider
agrees to provide Enhancement, (c) Indenture Trustee and Owner Trustee shall
have received written confirmation from each Rating Agency that the Exchange
will not result in the Rating Agency's reducing or withdrawing its rating on any
then outstanding Series rated by it and (d) Indenture Trustee shall have
received the existing Exchangeable Transferor Certificate and the Notes of the
Series, if any, to be exchanged. Upon satisfaction of such conditions, Owner
Trustee shall cancel the existing Exchangeable Transferor Certificate and issue,
as provided above, such Series of Notes and a new Exchangeable Transferor
Certificate. There is no limit to the number of Exchanges that may be performed
under this Agreement.
(b) Except as provided in any Indenture Supplement, Transferor's
interest in the Exchangeable Transferor Certificate and other amounts payable to
Transferor shall not be sold, transferred, assigned, exchanged, pledged,
participated or otherwise conveyed, unless (i) Indenture Trustee has received an
Officer's Certificate stating that such sale, transfer, assignment, exchange,
pledge, participation or conveyance will not, while any Series of Notes
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remains outstanding, reduce the Transferor Interest Percentage below the Minimum
Transferor Interest Percentage and (ii) prior to such sale, transfer,
assignment, exchange, pledge, participation or conveyance, the Rating Agency
Condition is satisfied and (iii) Indenture Trustee receives prior thereto an
Opinion of Counsel to the effect that (x) the conveyed interest in the
Exchangeable Transferor Certificate will be treated as either debt or an
interest in a partnership for Federal income tax purposes and that the
conveyance of such interest will not cause the Trust to be characterized for
Federal income tax purposes as an association taxable as a corporation or
otherwise have any material adverse impact on the Federal or applicable state
income taxation of any outstanding Series of Notes or any Note Owner and (y)
such transfer will not cause a taxable event for Federal income tax purposes to
any Noteholder.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1 Prior Notice to Transferor with Respect to Certain
Matters. With respect to the following matters, unless otherwise instructed by
Transferor, the Trust shall not take action unless at least thirty (30) days
before the taking of such action Owner Trustee shall have notified Transferor in
writing:
(a) the initiation of any claim or lawsuit by the Trust (other
than an action to collect on the Trust Estate) and the settlement of any action,
claim or lawsuit brought by or against the Trust (other than an action to
collect on the Trust Estate);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of Transferor;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of
Transferor; or
(f) the appointment pursuant to the Indenture of a replacement or
successor Transfer Agent and Registrar or Indenture Trustee, or the consent to
the assignment by the Transfer Agent and Registrar, Administrator or Indenture
Trustee of its obligations under the Indenture.
Section 4.2 Restrictions on Power.
(a) Owner Trustee shall not be required to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or Owner Trustee (as such or in its individual capacity) under any
of the Transaction Documents or would be contrary to Section 2.3.
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(b) Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated by the Transaction Documents.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.1 General Authority. Each of the Trust and Owner
Trustee in the name and on behalf of the Trust shall have power and authority,
and is hereby authorized and empowered, to execute and deliver the Transaction
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Transaction Documents
to which the Trust is to be a party, or any other agreement, in each case, in
such form as Transferor shall approve as evidenced conclusively by Owner
Trustee's execution thereof and Transferor's execution of the related documents.
In addition to the foregoing, Owner Trustee in the name and on behalf of the
Trust shall also have power and authority and is hereby authorized and
empowered, but shall not be obligated, to take all actions required of the Trust
pursuant to the Transaction Documents. Owner Trustee in the name and on behalf
of the Trust shall also have power and authority and is hereby authorized and
empowered from time to time to take such action as Transferor or Administrator
directs in writing with respect to the Transaction Documents.
Section 5.2 General Duties. It shall be the duty of Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which the
Trust is a party and to administer the Trust in the interest of Transferor,
subject to the Transaction Documents and in accordance with the provisions of
this Agreement. Notwithstanding the foregoing, Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent Administrator has agreed in the
Administration Agreement or another Transaction Document to perform any act or
to discharge any duty of Owner Trustee or the Trust under any Transaction
Document, and Owner Trustee shall not be personally liable for the default or
failure of Administrator to carry out its obligations under the Administration
Agreement.
Section 5.3 Action Upon Instruction.
(a) Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in personal liability on the part of Owner Trustee or is
contrary to the terms of any Transaction Document or is otherwise contrary to
law.
(b) Whenever Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of any
Transaction Document, Owner Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to Transferor requesting
instruction as to the course of action to be adopted, and to the extent Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction of Transferor received, Owner Trustee shall not be personally liable
on account of such action or inaction to
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any Person. If Owner Trustee shall not have received appropriate instruction
within ten (10) days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not in violation of the Transaction Documents, as it shall
deem to be in the best interest of Transferor, and shall have no personal
liability to any Person for such action or inaction.
(c) In the event that Owner Trustee is unsure as to the
application of any provision of any Transaction Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits any
determination by Owner Trustee or is silent or is incomplete as to the course of
action that Owner Trustee is required to take with respect to a particular set
of facts, Owner Trustee may give notice (in such form as shall be appropriate
under the circumstances) to Transferor requesting instruction and, to the extent
that Owner Trustee acts or refrains from acting in good faith in accordance with
any such instruction received, Owner Trustee shall not be personally liable, on
account of such action or inaction, to any Person. If Owner Trustee shall not
have received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not in violation of the Transaction
Documents, as it shall deem to be in the best interests of Transferor, and shall
have no personal liability to any Person for such action or inaction.
(d) Administrator and Transferor may, by written instruction,
direct Owner Trustee in the administration of the Trust to the extent permitted
by this Agreement and the Administration Agreement.
Section 5.4 No Duties Except as Specified in this Agreement or in
Instructions. Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust or the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by Owner Trustee pursuant to Section 5.3; and no implied
duties or obligations shall be read into any Transaction Document against Owner
Trustee. Owner Trustee shall have no responsibility for any filing or recording,
including filing any financing or continuation statement in any public office at
any time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it or the Trust hereunder or to prepare or file any
Commission filing for the Trust, or to prepare any tax forms, returns or reports
or to record any Transaction Document. Owner Trustee in its individual capacity
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Trust Estate or the transactions contemplated by the Transaction
Documents.
Section 5.5 No Action Except under Transaction Documents or
Instructions. Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except (i) in accordance with
the powers granted to and the authority conferred
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upon Owner Trustee pursuant to this Agreement, (ii) in accordance with the
Transaction Documents and (iii) in accordance with any document or instruction
delivered to Owner Trustee pursuant to Section 5.3.
Section 5.6 Restrictions. Owner Trustee shall not take any action
(a) that, to the actual knowledge of a Responsible Officer of Owner Trustee,
would violate the purposes of the Trust set forth in Section 2.3 or (b) that, to
the actual knowledge of a Responsible Officer of Owner Trustee, would result in
the Trust's becoming taxable as a corporation for federal income tax purposes.
Transferor shall not direct Owner Trustee to take action that would violate the
provisions of this Section 5.6.
Section 5.7 Tax Returns. In the event the Trust shall be required
to file tax returns, Administrator shall prepare or shall cause to be prepared
such tax returns and shall provide such tax returns to Owner Trustee for
signature at least five (5) days before such tax returns are due to be filed.
Administrator, in accordance with the terms of each Indenture Supplement, shall
also prepare or shall cause to be prepared all tax information required by law
to be distributed to Noteholders and shall deliver such information to Owner
Trustee at least five (5) days prior to the date it is required by law to be
distributed to Noteholders. Owner Trustee, upon request, will furnish
Administrator with all such information known to Owner Trustee as may be
reasonably required in connection with the preparation of all tax returns of the
Trust, and shall, upon request, execute such returns. In no event shall Owner
Trustee or Indenture Trustee be liable for any liabilities, costs or expenses of
the Trust or any Noteholder arising under any tax law, including federal, state
or local income or excise taxes or any other tax imposed on or measured by
income (or any interest or penalty with respect thereto arising from a failure
to comply therewith).
Section 5.8 Confidentiality. Owner Trustee hereby agrees not to
disclose to any Person any of the account numbers or other information contained
in any list of Accounts delivered to Owner Trustee pursuant to any Transaction
Document; provided, however, that nothing herein shall limit the disclosure of
any such information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) to counsel for Owner Trustee or any party involved in the
transactions contemplated hereby, (iii) to bank examiners, auditors or
accountants, (iv) in connection with any litigation to which Wilmington Trust
Company or Owner Trustee is a party involving the Trust Agreement or the
transactions contemplated hereby; and, provided further, that unless
specifically prohibited by applicable law or court order, Owner Trustee agrees,
prior to disclosure of any such confidential information, to notify Transferor
of any request for disclosure of any such information (x) by any governmental
agency or representative thereof (other than any such request in connection with
any examination of financial condition by such governmental agency) or (y)
pursuant to legal process.
ARTICLE VI
CONCERNING OWNER TRUSTEE
Section 6.1 Acceptance of Trusts and Duties. Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts, but only upon the terms of this Agreement. Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents.
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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 Owner
Trustee in its individual capacity. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) Owner Trustee shall not be personally liable for any error of
judgment made in good faith by a Responsible Officer of Owner Trustee;
(b) Owner Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of Administrator or Transferor;
(c) no provision of this Agreement or any other Transaction
Document shall require Owner Trustee to expend or risk funds or otherwise incur
any personal financial liability in the exercise or performance of any of its
duties, rights or powers hereunder or under any other Transaction Document, if
Owner Trustee shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to it (as such and in its individual capacity);
(d) under no circumstances shall Owner Trustee be personally
liable for indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) Owner Trustee shall not be personally responsible for or in
respect of the validity or sufficiency of this Agreement, the due execution
hereof by Transferor or the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate, the Transaction Documents, the Notes or the
Exchangeable Transferor Certificate, and Owner Trustee shall in no event assume
or incur any personal liability, duty, or obligation to any Noteholder,
Transferor, any Holder of the Exchangeable Transferor Certificate or any other
Person, other than as expressly provided for herein or expressly agreed to in
the other Transaction Documents;
(f) Owner Trustee shall not be personally liable for the default
or misconduct of, and shall have no duty to monitor the performance of,
Transferor, Servicer, Administrator or Indenture Trustee or any other Person
under any of the Transaction Documents or otherwise, and Owner Trustee shall
have no obligation or personal liability to perform the obligations of the Trust
under the Transaction Documents, including those that are required to be
performed by Administrator under the Administration Agreement, Indenture Trustee
under the Indenture or Servicer under the Transfer and Servicing Agreement;
(g) Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to any
Transaction Document, at the request, order or direction of Transferor, unless
Transferor has offered to Owner Trustee (as such and in its individual capacity)
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by Owner Trustee therein or thereby. The right
of Owner Trustee
10
to perform any discretionary act enumerated in any Transaction Document shall
not be construed as a duty, and Owner Trustee shall not be answerable or
personally liable to any Person for any such act other than liability to the
Trust and the beneficial owners of the Trust for its own negligence, bad faith
or willful misconduct in the performance of any such act or the omission to
perform any such act; and
(h) Notwithstanding anything contained herein to the contrary,
Owner Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will (i) require the
registration with, licensing by or the taking of any other similar action in
respect of, any State or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to Owner
Trustee (as such or in its individual capacity); (ii) result in any fee, tax or
other governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of
Delaware becoming payable by Owner Trustee (as such or in its individual
capacity); or (iii) subject Owner Trustee (as such or in its individual
capacity) to personal jurisdiction in any jurisdiction other than the State of
Delaware for causes of action arising from acts unrelated to the consummation of
the transactions by Owner Trustee contemplated hereby. Owner Trustee shall be
entitled to obtain advice of counsel (which advice shall be an expense of
Transferor) to determine whether any action required to be taken pursuant to the
Agreement results in the consequences described in clauses (i), (ii) and (iii)
of the preceding sentence. In the event that said counsel advises Owner Trustee
that such action will result in such consequences, Transferor shall appoint an
additional trustee pursuant to Section 9.5 to proceed with such action.
Section 6.2 Furnishing of Documents. Owner Trustee shall furnish
to Transferor and Indenture Trustee, promptly upon written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to Owner Trustee under
the Transaction Documents.
Section 6.3 Representations and Warranties. Owner Trustee (as
such and in its individual capacity) hereby represents and warrants to
Transferor that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate and trust power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) It has taken all corporate and trust action necessary to
authorize the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of Owner Trustee (as such and in its individual
capacity) or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound.
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Section 6.4 Reliance; Advice of Counsel.
(a) Owner Trustee shall incur no personal liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper reasonably
believed by it to be genuine and reasonably believed by it to be signed by the
proper party or parties. Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any Person as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein, Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized officer
of an appropriate Person, as to such fact or matter, and such certificate shall
constitute full protection to Owner Trustee for any action taken or omitted to
be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or the
other Transaction Documents, Owner Trustee (i) may act directly or through
agents or attorneys pursuant to agreements entered into with any of them, and
Owner Trustee shall not be personally liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. Owner Trustee shall not be personally liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or written advice of any such counsel, accountants or other such Persons.
Section 6.5 Not Acting in Individual Capacity. Except as
expressly provided in this Article VI, in accepting the trusts hereby created,
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against Owner Trustee by
reason of the transactions contemplated by any Transaction Document shall look
only to the Trust Estate for payment or satisfaction thereof.
Section 6.6 Owner Trustee Not Liable for Notes or Receivables.
The statements contained herein and in the Notes and other Transaction Documents
(other than the representations and warranties in Section 6.3) shall be taken as
the statements of Transferor, and Owner Trustee assumes no responsibility for
the correctness thereof. Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement or any other Transaction Document, the
Notes or related documents. Owner Trustee shall at no time have any
responsibility or personal liability for or with respect to the legality,
validity and enforceability of the Receivables or the perfection and priority of
any security interest in the Receivables or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Estate or its ability to generate the payments to be distributed to the
Noteholders under the Indenture, including the existence, condition and
ownership of the Receivables; the existence and contents of the Receivables on
any computer or other record thereof; the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the completeness of
the Receivables; the performance or enforcement of the Receivables; the
compliance by Transferor with any warranty or representation made under any
Transaction Document or in any
12
related document or the accuracy of any such warranty or representation or any
action of Administrator, Servicer or Indenture Trustee taken in the name of
Owner Trustee.
Section 6.7 Owner Trustee May Own Notes. Owner Trustee may become
the owner or pledgee of Notes. If Owner Trustee becomes the owner or pledgee of
Notes it shall have the same rights as it would have if it were not Owner
Trustee. Owner Trustee may deal with Transferor, Administrator, Servicer and
Indenture Trustee in banking transactions with the same rights as it would have
if it were not Owner Trustee.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.1 Owner Trustee's Fees and Expenses. Owner Trustee (in its
individual capacity) shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date hereof between
Transferor and Owner Trustee (in its individual capacity) (which compensation
shall not be limited by any law on compensation of a trustee of an express
trust), and Owner Trustee (in its individual capacity) shall be entitled to be
reimbursed by Transferor for its other reasonable expenses hereunder, including
the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as Owner Trustee may employ in connection
with the exercise and performance of its rights and its duties hereunder and
under the Transaction Documents; provided, however, that Owner Trustee shall
have no recourse to the assets pledged under the Indenture with respect to
amounts payable under this Section 7.1 and Owner Trustee's right to enforce such
obligation shall be subject to the provisions of Section 10.8.
Section 7.2 Indemnification. To the fullest extent permitted by law,
Transferor shall indemnify, defend and hold harmless Owner Trustee (as such and
in its individual capacity) and its successors, assigns, directors, officers,
agents, employees and servants (each an "Indemnified Party" and collectively,
the "Indemnified Parties") from and against, any and all liabilities,
obligations, losses, damages, taxes, claims, actions and suits, and any and all
reasonable costs, expenses and disbursements (including reasonable legal fees
and expenses) of any kind and nature whatsoever (collectively, "Expenses") which
may at any time be imposed on, incurred by, or asserted against Owner Trustee or
any Indemnified Party in any way relating to or arising out of the Transaction
Documents, the Trust Estate, the acceptance and administration of the Trust
Estate or any action or inaction of Owner Trustee; provided, however, that
Transferor shall not be liable for or required to indemnify any Indemnified
Party from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.1 or Expenses for which
indemnification is actually received under other Transaction Documents; and,
provided further, that Transferor shall not be liable for or required to
indemnify an Indemnified Party from and against expenses arising or resulting
from (i) the Indemnified Party's own willful misconduct, bad faith or 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 Transferor pursuant
to this Section 7.2. An Indemnified Party's right to enforce such obligation
shall be subject to the provisions of Section 10.8. The indemnities contained in
this Section 7.2 shall survive the resignation and termination of Owner Trustee
or the termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to
13
this Section 7.2, Owner Trustee's choice of legal counsel shall be subject to
the approval of Transferor, which approval shall not be unreasonably withheld.
Section 7.3 Payments to Owner Trustee. Any amounts paid to Owner
Trustee or any other Indemnified Party pursuant to this Article VII shall not be
construed to be a part of the Trust Estate.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.1 Termination of Trust Agreement.
(a) The Trust shall dissolve upon the date specified by Transferor
(the "Trust Termination Date", written notice of which shall be provided to
Owner Trustee); provided, however, that the Trust Termination Date shall not be
earlier than the day on which the rights of all Series of Notes to receive
payments from the Trust have terminated. After satisfaction of liabilities of
the Trust as provided by applicable law, any money or other property held as
part of the Trust Estate following such distribution shall be distributed to
Transferor. The bankruptcy, liquidation, dissolution, termination, death or
incapacity of Transferor shall not (x) operate to terminate this Agreement or
annul, dissolve or terminate the Trust, or (y) entitle Transferor's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Estate or (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a), neither Transferor nor any
Holder of the Exchangeable Transferor Certificate shall be entitled to revoke,
dissolve or terminate the Trust.
(c) Upon completion of the winding up of the Trust in accordance
with the Business Trust Statute, Owner Trustee shall cause the Certificate of
Trust to be canceled by filing a certificate of cancellation with the Secretary
of State of the State of Delaware in accordance with the provisions of Section
3810 of the Business Trust Statute and thereupon the Trust and this Agreement
(other than Articles VI and VII and Section 10.8) shall terminate.
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ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.1 Eligibility Requirements for Owner Trustee. Owner
Trustee shall at all times be a Person satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise trust powers;
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities; and having (or
having a parent which has) a rating of at least Baa3 by ▇▇▇▇▇'▇, at least BBB-
by Standard & Poor's and, if rated by Fitch, at least BBB- by Fitch, or
otherwise satisfactory to each Rating Agency. If such Person shall publish
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 9.1, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time Owner Trustee shall cease
to be eligible in accordance with the provisions of this Section 9.1, Owner
Trustee shall resign immediately in the manner and with the effect specified in
Section 9.2.
Section 9.2 Resignation or Removal of Owner Trustee. Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to Transferor; provided, however, that such
resignation and discharge shall only be effective upon the appointment of a
successor Owner Trustee. Upon receiving such notice of resignation, Transferor
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within thirty
(30) days after the giving of such notice of resignation, the resigning Owner
Trustee at the expense of Transferor may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by Transferor, or if at any time Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of Owner Trustee or of its property shall be appointed, or any public officer
shall take charge or control of Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then Transferor may,
but shall not be required to, remove Owner Trustee. If Transferor shall remove
Owner Trustee under the authority of the immediately preceding sentence,
Transferor shall promptly (i) appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
outgoing Owner Trustee so removed and one copy to the successor Owner Trustee
and (ii) pay all amounts owed to the outgoing Owner Trustee in its individual
capacity.
Any resignation or removal of Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 9.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.3 and, in the case of removal, payment of
all fees and expenses owed to the outgoing Owner Trustee (as such or in its
individual capacity). Transferor shall provide notice of such resignation or
removal of Owner Trustee to each Rating Agency.
15
Section 9.3 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to
Transferor and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and Transferor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section 9.3 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section 9.3, Transferor shall mail notice of such acceptance of
appointment including the name of such successor Owner Trustee to Indenture
Trustee, the Noteholders and each Rating Agency. If Transferor shall fail to
mail such notice within ten (10) days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of Transferor.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section 9.3, such successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business of such successor Owner
Trustee in the State of Delaware.
Section 9.4 Merger or Consolidation of Owner Trustee.
Notwithstanding anything herein to the contrary, any Person into which Owner
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which Owner
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of Owner Trustee, shall be the successor of
Owner Trustee hereunder (provided that such Person shall meet the eligibility
requirements set forth in Section 9.1), without the execution or filing of any
instrument or any further act on the part of any of the parties hereto;
provided, however, that (i) Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency and (ii) Owner Trustee shall file any
necessary amendments to the Certificate of Trust with the Secretary of State of
the State of Delaware.
Section 9.5 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, Transferor and Owner Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by each of Transferor and
Owner Trustee to act as co-trustee, jointly with Owner Trustee, or separate
trustee or separate trustees,
16
of all or any part of the Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 9.5, such powers, duties, obligations, rights
and trusts as Transferor and Owner Trustee may consider necessary or desirable.
If Transferor shall not have joined in such appointment within fifteen (15) days
after the receipt by it of a request so to do, Owner Trustee alone shall have
the power to make such appointment. no co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 9.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred
or imposed upon Owner Trustee shall be conferred upon and exercised or
performed by Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without Owner Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties, and obligations (including
the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under
this Agreement; and
(iii) Transferor and Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, Owner Trustee. Each such instrument shall be filed with Owner Trustee and a
copy thereof given to Transferor.
Any separate trustee or co-trustee may at any time appoint
Owner Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
17
ARTICLE X
MISCELLANEOUS
Section 10.1 Supplements and Amendments. This Agreement may be
amended from time to time, by a written amendment duly executed and delivered by
Transferor and Owner Trustee, without the consent of any of the Noteholders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
to add any other provisions with respect to matters or questions raised under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such amendment will not, as evidenced by an
Opinion of Counsel of Transferor addressed and delivered to Owner Trustee and
Indenture Trustee, materially and adversely affect the interest of any
Noteholder. In addition, this Agreement may be amended from time to time, by a
written amendment duly executed and delivered by Transferor and Owner Trustee,
without the consent of any of the Noteholders, and upon satisfaction of the
Rating Agency Condition, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the Noteholders; provided, however, that
such amendment will not (i) as evidenced by an Opinion of Counsel delivered to
Owner Trustee and Indenture Trustee, materially and adversely affect the
interests of the Noteholders of any outstanding Series, which Opinion of Counsel
may rely as to any rated Series solely on the rating confirmation referred to in
clause (iii) below (or 100% of the Class of Noteholders so affected shall have
consented), (ii) as evidenced by an Opinion of Counsel, cause any outstanding
Series as to which an opinion that it was debt was given on its Closing Date to
fail to qualify as debt for Federal income tax purposes, cause the Trust to be
characterized for Federal income tax purposes as an association taxable as a
corporation or otherwise have any material adverse impact on the Federal income
tax characterization of any outstanding Series of Notes or the Federal income
taxation of any Noteholder or any Note Owner and (iii) the Rating Agency
Condition shall have been satisfied; and, provided further, that such amendment
shall not effect a significant change in the Permitted Activities of the Trust
or reduce in any manner the amount of, or delay the timing of, or change the
priority of, distributions which are required to be made on any Note of such
Series without the consent of the related Noteholder or change the definition of
or the manner of calculating the interest of any Note of such Series without the
consent of the related Noteholder or reduce the required percentage for consents
to amendments pursuant to this Section 10.1 without the consent of each affected
Noteholder.
This Agreement may also be amended from time to time by a
written amendment duly executed and delivered by Transferor and Owner Trustee,
with the consent of Indenture Trustee and the Holders of Notes evidencing not
less than 66 2/3% of the Invested Amount of the Notes, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, distributions which are required to be made
on any Note of such Series without the consent of the related Noteholders, (ii)
change the definition of or the manner of calculating the Invested Amount, the
Invested Percentage, the applicable available amount under any Enhancement or
the Investor Default Amount of such Series without the consent of the related
Noteholders or (iii) reduce the aforesaid percentage required to consent to any
such amendment, without the consent of the related Noteholders. Any amendment
pursuant to this Section 10.1 shall require that each Rating Agency rating the
affected Series confirm that
18
such amendment will not cause a reduction or withdrawal of the rating of any
outstanding Series of Notes.
Promptly after the execution of any such amendment or consent,
Transferor shall furnish written notification of the substance of such amendment
or consent to Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Noteholders
pursuant to this Section 10.1 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof.
Promptly after the execution of any amendment to the
Certificate of Trust, Owner Trustee shall cause the filing of such amendment
with the Secretary of State of the State of Delaware.
Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer's Certificate of Transferor to the effect
that the conditions to amendment have been satisfied.
Owner Trustee may, but shall not be obligated to, enter into,
and unless it has consented thereto in writing shall not be bound by, any
amendment which affects Owner Trustee's own rights, duties, benefits,
protections, privileges or immunities (as such or in its individual capacity)
under this Agreement or otherwise.
Section 10.2 No Legal Title to Trust Estate in Transferor.
Transferor shall not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title, and interest of
Transferor to and in its undivided beneficial interest in the Trust Estate shall
operate to terminate this Agreement or annul, dissolve or terminate the Trust or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
Section 10.3 Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of Owner Trustee (as such or in its
individual capacity), the other Indemnified Parties, Transferor, the Holders of
the Supplemental Interests, if any, and, to the extent expressly provided
herein, Indenture Trustee and the Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
Section 10.4 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices and other communications shall be in
writing and shall be deemed given upon receipt by the intended recipient or
three (3) Business Days after mailing if mailed by certified mail, postage
prepaid (except that notice to Owner Trustee, Transferor or Indenture Trustee
shall be deemed given only upon actual receipt by Owner Trustee, Transferor or
Indenture Trustee), if to Owner Trustee, addressed to the Corporate Trust
Office; if to Indenture Trustee, addressed to JPMorgan Chase Bank, 450 West
▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telecopy number (212)
▇▇▇-▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇; if to
19
Transferor, addressed to DC Funding International, Inc., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ 11, Bermuda, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, telephone
number (▇▇▇) ▇▇▇-▇▇▇▇; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
Section 10.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Transferor
and its permitted assignees and Owner Trustee (as such or in its individual
capacity) and its successors, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by Transferor shall
bind the successors and assigns of Transferor.
Section 10.8 Non-petition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, Wilmington Trust Company,
individually or in its capacity as Owner Trustee, shall not at any time
institute against the Trust, Transferor or the Certificate Trust, or solicit or
join or cooperate with or encourage any institution against the Trust,
Transferor or the Certificate Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligation relating to the Notes, this Agreement or any of the Transaction
Documents; provided, however, that this Section 10.8 shall not operate to
preclude any remedy described in Article V of the Indenture.
Notwithstanding any prior termination of the Trust or this Agreement,
Transferor shall not at any time institute against the Trust or the Certificate
Trust, or solicit or join or cooperate with or encourage any institution against
the Trust or the Certificate Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Agreement or any of the Transaction
Documents; provided, however, that this Section 10.8 shall not operate to
preclude any remedy described in Article V of the Indenture.
Section 10.9 No Recourse. Each Person holding or owning the
Exchangeable Transferor Certificate (or any interest therein), by accepting the
Exchangeable Transferor Certificate (or its interest therein), acknowledges that
the Exchangeable Transferor Certificate does not represent an interest in or
obligation of Servicer, Owner Trustee (as such or in its individual capacity),
Indenture Trustee or any Affiliate thereof (other than the Trust), and no
recourse may be had against such parties or their assets, or against the assets
pledged under the Indenture, except as expressly provided in the Transaction
Documents.
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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 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.
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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,
not in its individual capacity
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Financial Services Officer
DC FUNDING INTERNATIONAL, INC.,
as Transferor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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