EXHIBIT 4.4
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TRUST AGREEMENT
Dated as of October 16, 2002
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FIRST NATIONAL FUNDING LLC,
Transferor,
and
WILMINGTON TRUST COMPANY,
Owner Trustee
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FIRST NATIONAL MASTER NOTE TRUST
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms............................................ 1
Section 1.02. Other Definitional Provisions................................ 1
ARTICLE II
ORGANIZATION
Section 2.01. Name......................................................... 2
Section 2.02. Office....................................................... 2
Section 2.03. Purpose and Powers........................................... 2
Section 2.04. Appointment of Owner Trustee................................. 3
Section 2.05. Capital Contribution of Trust Estate......................... 3
Section 2.06. Declaration of Trust......................................... 3
Section 2.07. Title to Trust Property...................................... 3
Section 2.08. Situs of Trust............................................... 3
Section 2.09. Representations and Warranties of Transferor................. 4
Section 2.10. Liability of Beneficiaries................................... 5
ARTICLE III
BENEFICIAL INTERESTS
Section 3.01. Initial Ownership............................................ 5
Section 3.02. Transferor Interest.......................................... 5
Section 3.03. Form of Transferor Interest.................................. 5
Section 3.04. Restrictions on Transfer; Issuance of Supplemental Interests. 5
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Transferor With Respect to Certain Matters... 6
Section 4.02. Restrictions on Power........................................ 7
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority............................................ 7
Section 5.02. General Duties............................................... 7
Section 5.03. Action Upon Instruction...................................... 8
Section 5.04. No Duties Except as Specified in This Agreement or in
Instructions ................................................ 9
Section 5.05. No Action Except Under Transaction Documents or Instructions. 9
Section 5.06. Restrictions................................................. 9
Section 5.07. Tax Returns.................................................. 9
ARTICLE VI
CONCERNING OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties.............................. 10
Section 6.02. Furnishing of Documents...................................... 11
Section 6.03. Representations and Warranties............................... 12
Section 6.04. Reliance; Advice of Counsel.................................. 12
Section 6.05. Not Acting in Individual Capacity............................ 13
Section 6.06. Owner Trustee Not Liable for Notes or Receivables............ 13
Section 6.07. Owner Trustee May Own Notes.................................. 13
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses............................ 13
Section 7.02. Indemnification.............................................. 14
Section 7.03. Payments to Owner Trustee.................................... 14
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement............................... 14
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee................... 15
Section 9.02. Resignation or Removal of Owner Trustee...................... 15
Section 9.03. Successor Owner Trustee...................................... 16
Section 9.04. Merger or Consolidation of Owner Trustee..................... 16
Section 9.05. Appointment of Co-Trustee or Separate Trustee................ 17
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments................................... 18
Section 10.02. No Legal Title to Trust Estate in Transferor................. 19
Section 10.03. Limitations on Rights of Others.............................. 19
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Section 10.04. Notices...................................................... 19
Section 10.05. Severability................................................. 20
Section 10.06. Separate Counterparts........................................ 20
Section 10.07. Successors and Assigns....................................... 20
Section 10.08. Non-petition Covenants....................................... 20
Section 10.09. No Recourse.................................................. 20
Section 10.10. Headings..................................................... 21
Section 10.11. Governing Law................................................ 21
Section 10.12. Integration of Documents..................................... 21
EXHIBIT A FORM OF CERTIFICATE OF TRUST OF FIRST NATIONAL MASTER NOTE TRUST
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TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of October 16, 2002 (this "Agreement"),
between FIRST NATIONAL FUNDING LLC, a Nebraska limited liability company, as
Transferor ("Transferor"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, acting hereunder in its individual capacity and as Owner Trustee
("Owner Trustee").
In consideration of the mutual agreements contained herein, Transferor and
Owner Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. 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 First National Master Note Trust and The Bank of
New York, as Indenture Trustee.
SECTION 1.02. 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 Nebraska 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; (j) references to any agreement refer to that agreement as amended,
supplemented or otherwise modified from time to time; and (k) headings are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
SECTION 2.01. NAME. The trust created hereby shall be known as "First
National Master Note Trust," in which name the Trust and Owner Trustee on behalf
of the Trust each shall have power and authority and the Owner Trustee is hereby
authorized and empowered to and may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and ▇▇▇ and be
sued.
SECTION 2.02. OFFICE. The office of the Trust shall be in care of 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 2.03. PURPOSE AND POWERS. The purpose of the Trust is to engage in
the activities set forth in this Section 2.03. The Trust shall have power and
authority and is hereby authorized and empowered, without the need for further
action on the part of the Trust, and Owner Trustee shall have power and
authority, and is hereby authorized and empowered, in the name and on behalf of
the Trust, to do or cause to be done all acts and things necessary, appropriate
or convenient to cause the Trust to engage in the activities set forth in this
Section 2.03 as follows:
(a) to execute, deliver and issue the Notes pursuant to the
Indenture, to issue the Transferor Interest and to issue the Supplemental
Interests, if any, pursuant to this Agreement;
(b) with the proceeds of the sale of the Notes, to acquire the Trust
Estate and to pay Transferor the amounts owed pursuant to Section 2.01 of
the Transfer and Servicing Agreement;
(c) to assign, grant, pledge and mortgage the Collateral pursuant to
the Indenture and to hold, manage and distribute to the Holder of the
Transferor 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;
(d) to enter into, execute, deliver and perform the Transaction
Documents to which it is to be a party;
(e) 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
(f) 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 Holders of the Transferor Interest.
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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.
SECTION 2.04. 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.
SECTION 2.05. 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 that any
part of the Trust Estate delivered to Owner Trustee 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 2.06. 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. It is the
intention of the parties hereto that the Trust constitute a statutory trust
under the Statutory Trust Act 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 Statutory Trust Act with respect to
accomplishing the purposes of the Trust. Owner Trustee has filed or caused to be
filed the Certificate of Trust in the form of Exhibit A to this Agreement.
SECTION 2.07. TITLE TO TRUST PROPERTY. Legal title to all the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in Owner Trustee, a co-trustee and/or a separate trustee, as
the case may be.
SECTION 2.08. SITUS OF TRUST. The Trust will be located and administered
in the State of Delaware. All bank accounts maintained by, 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.
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SECTION 2.09. REPRESENTATIONS AND WARRANTIES OF TRANSFEROR. Transferor
hereby represents and warrants to Owner Trustee (as such or in its individual
capacity) that:
(a) Transferor is a limited liability company duly organized and
validly existing in good standing under the laws of the State of Nebraska
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) Transferor is duly qualified to do business and is in good
standing (or is exempt from such requirement) in any State required in
order to conduct its business, and has obtained all necessary licenses and
approvals with respect to Transferor, in each jurisdiction in which
failure to so qualify or to obtain such licenses and approvals would have
a material adverse effect on its ability to perform its obligations under
the Transaction Documents to which it is a party.
(c) The execution and delivery of the Transaction Documents to which
Transferor is a party and the consummation of the transactions provided
for in the Transaction Documents to which Transferor is a party have been
duly authorized by Transferor by all necessary limited liability company
action on its part. Transferor has the power and authority to assign the
property to be assigned to and deposited with the Trust pursuant to
Section 2.05 of this Agreement and Section 2.01 of the Transfer and
Servicing Agreement.
(d) The execution and delivery of the Transaction Documents to which
Transferor is a party, the performance of the transactions contemplated by
the Transaction Documents to which Transferor is a party and the
fulfillment of the terms hereof and thereof will not conflict with or
violate any Requirements of Law applicable to Transferor, 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 Transferor is a party or by which it or any
of its properties are bound (other than violations of such indentures,
contracts, agreements, mortgages, deeds of trust or other instruments
which, individually or in the aggregate, would not have a material adverse
effect on Transferor's ability to perform its obligations under this
Agreement).
(e) There are no proceedings or investigations pending or, to the
best knowledge of Transferor, threatened, against Transferor before any
court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over Transferor (i)
asserting the invalidity of any of the Transaction Documents to which
Transferor is a party, (ii) seeking to prevent the consummation of any of
the transactions contemplated by any of the Transaction Documents to which
Transferor is a party, (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 the
Transaction Documents to which Transferor is a party, or (iv) seeking any
determination or ruling that would materially and adversely
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affect the validity or enforceability of the Transaction Documents to
which Transferor is a party.
(f) This Agreement is legal, valid and enforceable against
Transferor.
SECTION 2.10. LIABILITY OF BENEFICIARIES. The Holders of the Transferor
Interest, including the Holders of 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.
ARTICLE III
BENEFICIAL INTERESTS
SECTION 3.01. INITIAL OWNERSHIP. Transferor, as the Holder of the
Transferor 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 3.02. TRANSFEROR INTEREST. The Transferor Interest 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 Holders of the Transferor Interest.
SECTION 3.03. FORM OF TRANSFEROR INTEREST. The Transferor Interest
initially shall be an uncertificated interest in the Trust.
SECTION 3.04. RESTRICTIONS ON TRANSFER; ISSUANCE OF SUPPLEMENTAL
INTERESTS.
(a) Transferor may from time to time transfer a portion of the
Transferor Interest by causing the issuance of one or more additional
interests (each a "Supplemental Interest"), which shall be in
uncertificated form. The form and terms of any Supplemental Interest shall
be defined in a supplement to this Agreement (which supplement shall be
subject to Section 10.01 to the extent that it amends any of the terms of
this Agreement) to be delivered to or upon the order of Transferor (or the
holder of a Supplemental Interest, in the case of the transfer or exchange
thereof, as provided below). The issuance of any such Supplemental
Interest to any Person shall be subject to satisfaction of the following
conditions:
(i) the Rating Agency Condition shall have been satisfied with
respect to such action; and
(ii) Transferor shall have delivered to Owner Trustee,
Indenture Trustee and each Rating Agency a Tax Opinion, dated the
date of such action (or transfer, exchange or other disposition
provided below), with respect to such action and an Opinion of
Counsel to the effect that such action, assignment, participation,
pledge or other disposition does not require registration of the
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interest under the Securities Act or any state securities law except
for any such registration that has been duly completed and become
effective.
A Supplemental Interest may be transferred or exchanged, and the
Transferor Interest may be pledged, only upon satisfaction of the
conditions set forth in clause (ii).
(b) The Transferor Interest may be transferred in its entirety to a
Person which is a member of the "affiliated group" as defined in Section
1504(a) of the Code of which Transferor is a member without the consent or
approval of the Noteholders, provided that (i) the Rating Agency Condition
shall have been satisfied with respect to such transfer, (ii) Transferor
shall have delivered to Owner Trustee, Indenture Trustee and each Rating
Agency a Tax Opinion and an Opinion of Counsel of the type described in
Section 3.04(a)(ii), dated the date of such transfer, with respect thereto
and (iii) Transferor shall have delivered to Indenture Trustee an
Officer's Certificate stating that the Transferor Interest shall not be
less than the Minimum Transferor Interest. In connection with any such
transfer, the Person to whom the Transferor Interest is transferred will,
by its acquisition and holding of an interest in the Transferor Interest,
assume all of the rights and obligations of Transferor as described in
this Agreement, each Transaction Document and in any supplement or
amendment thereto (including the right under this paragraph (b) with
respect to subsequent transfers of an interest in the Transferor
Interest).
(c) Owner Trustee may request and fully rely upon an Officer's
Certificate from Transferor to confirm that all conditions set forth in
this Section 3.04(a) or (b), as applicable, have been met.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. 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 30 days before the
taking of such action Owner Trustee shall have notified Transferor:
(a) the initiation of any claim or lawsuit by the Trust (other than
an action to collect on the Trust Estate) and the settlement of any
action, claim or lawsuit brought by or against the Trust (other than an
action to collect on the Trust Estate);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such filing is required by Section 3807(e) of
the Statutory Trust Act);
(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;
6
(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 4.02. 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 2.03.
(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 5.01. 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 amendment thereto or 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 5.02. 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 any other Transaction Documents to which the
Trust is a party and to administer the Trust as expressly set forth herein 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
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personally liable for the default or failure of Administrator to carry out its
obligations under the Administration Agreement.
SECTION 5.03. 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 any Person.
If Owner Trustee shall not have received appropriate instruction within 10
days of such notice (or within such shorter period of time as reasonably
may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not 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 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) The Administrator and the Transferor may, by written
instruction, direct the Owner Trustee in the administration of the Trust
to the extent permitted by, and not inconsistent with, the Transaction
Documents (other than the Transaction Documents to which the Owner Trustee
is a party in its individual capacity).
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SECTION 5.04. 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 5.03; 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, execute 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 5.05. 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 upon Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Transaction Documents or (iii) in
accordance with any document or instruction delivered to Owner Trustee pursuant
to Section 5.03.
SECTION 5.06. 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 2.03 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 5.06.
SECTION 5.07. 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 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
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).
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ARTICLE VI
CONCERNING OWNER TRUSTEE
SECTION 6.01. 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 to the Indenture Trustee for disbursement pursuant to the
Transaction Documents. 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 6.03
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 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 Transferor Interest, and Owner Trustee shall
in no event assume or incur any personal liability, duty, or obligation to
any Noteholder, Transferor, any Holder of the Transferor Interest 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
10
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 the 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 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 gross
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 this
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 9.05 to
proceed with such action.
SECTION 6.02. 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.
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SECTION 6.03. 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 State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof, will
contravene any federal or Delaware law, governmental rule or regulation
governing the banking or trust powers of 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 bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by
which any of its properties may be bound.
SECTION 6.04. RELIANCE; ADVICE OF COUNSEL.
(a) 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 in good faith, and (ii) may consult
with counsel, accountants and other skilled Persons to be selected in good
faith 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.
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SECTION 6.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as expressly
provided in this Article VI, in accepting the trusts hereby created, Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against Owner Trustee by reason of
the transactions contemplated by any Transaction Document shall look only to the
Trust Estate for payment or satisfaction thereof.
SECTION 6.06. OWNER TRUSTEE NOT LIABLE FOR NOTES OR RECEIVABLES. The
statements contained herein and in the Notes and other Transaction Documents
(other than the representations and warranties in Section 6.03) 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 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 6.07. 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 7.01. 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 any
payments pursuant to this Section 7.01 and Owner Trustee's right to enforce such
obligation shall be subject to the provisions of Section 10.08.
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SECTION 7.02. 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 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 6.01 or Expenses for which indemnification is actually
received under other Transaction Documents; 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 fraud,
negligence or willful misconduct, or (ii) the inaccuracy of any representation
or warranty contained in Section 6.03. 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 7.02. An Indemnified Party's right to
enforce such obligation shall be subject to the provisions of Section 10.08. The
indemnities contained in this Section 7.02 shall survive the resignation and
termination of Owner Trustee or the termination of this Agreement.
SECTION 7.03. 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 8.01. 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 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 (i) operate to
terminate this Agreement or annul, dissolve or terminate the Trust, or
(ii) 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
(iii) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except as provided in Section 8.01(a), neither Transferor nor
any Holder of the Transferor Interest shall be entitled to revoke,
dissolve or terminate the Trust.
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(c) Upon completion of the winding up of the Trust in accordance
with the Statutory Trust Act, 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 Statutory Trust Act and thereupon the
Trust and this Agreement (other than Articles VI and VII and Section
10.08) shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. Owner Trustee
shall at all times be a Person satisfying the provisions of Section 3807(a) of
the Statutory Trust Act; 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 9.01,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.01, Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 9.02.
SECTION 9.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. 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 60 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 9.01 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.
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Any resignation or removal of Owner Trustee and appointment of a successor
Owner Trustee pursuant to any of the provisions of this Section 9.02 shall not
become effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and, in the case of removal, payment of all fees and
expenses owed to the outgoing Owner Trustee (as such or in its individual
capacity). Transferor shall provide notice of such resignation or removal of
Owner Trustee to each Rating Agency.
SECTION 9.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to
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 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, Transferor shall mail notice of such acceptance of
appointment, including the name of such successor Owner Trustee to Transferor,
Indenture Trustee, the Noteholders and each Rating Agency. If Transferor shall
fail to mail such notice within 10 days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of Transferor.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.03, such successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business of such successor Owner
Trustee in the State of Delaware.
SECTION 9.04. 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 9.01), without the execution or filing of any
instrument or any further act on the part of any of the parties hereto;
provided, further that (a) Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency and (b) Owner Trustee shall file any
necessary amendments to the Certificate of Trust with the Secretary of State of
the State of Delaware.
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SECTION 9.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, 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, of all or any part of the Trust Estate, and to
vest in such Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 9.05, such powers,
duties, obligations, rights and trusts as Transferor and Owner Trustee may
consider necessary or desirable. If Transferor shall not have joined in such
appointment within 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 9.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant to
Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) 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;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) 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.
17
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.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. SUPPLEMENTS AND AMENDMENTS. This Agreement may be amended
from time to time, by a written amendment duly executed and delivered by
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
Officer's Certificate 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 (a) as evidenced by an Officer's Certificate of
Transferor addressed and delivered to Owner Trustee and Indenture Trustee,
materially and adversely affect the interest of any Noteholder and (b) as
evidenced by an Opinion of Counsel addressed and delivered to Owner Trustee and
Indenture Trustee, cause the Trust to be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes; provided, further, that Section 2.03 of this Agreement may be amended
only with the consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes. Additionally, notwithstanding
the preceding sentence, this Agreement will be amended by Transferor and Owner
Trustee without the consent of Indenture Trustee or any of the Noteholders to
add, modify or eliminate such provisions as may be necessary or advisable in
order to enable all or a portion of the Trust (i) to qualify as, and to permit
an election to be made to cause the Trust to be treated as, a "financial asset
securitization investment trust" as described in the provisions of Section 860L
of the Code, and (ii) to avoid the imposition of state or local income or
franchise taxes imposed on the Trust's property or its income; provided,
however, that (A) Transferor delivers to Indenture Trustee and Owner Trustee an
Officer's Certificate to the effect that the proposed amendments meet the
requirements set forth in this subsection, (B) the Rating Agency Condition shall
have been satisfied with respect to such amendment and (C) such amendment does
not affect the rights, benefits, protections, privileges, immunities, duties or
obligations of Owner Trustee hereunder.
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 more than
66-2/3% of the Outstanding Amount of the Notes,
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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, as evidenced by an Opinion of Counsel addressed and
delivered to Owner Trustee and 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, 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 10.01 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof
Promptly after the execution of any amendment to the Certificate of Trust,
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 10.02. 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 10.03. 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, 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 10.04. NOTICES. Unless otherwise expressly specified or permitted
by the terms hereof, all notices and other communications shall be in writing
and shall be deemed given upon receipt by the intended recipient or three
Business Days after mailing if mailed by certified mail,
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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 The Bank of New
York, Suite 1020, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to
Transferor, addressed to First National Funding LLC, 1620 Dodge Street, Stop
Code 3198, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - 3198, Attention: President; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
SECTION 10.05. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.06. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, 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 10.08. 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, First National Funding Corporation or
Certificate Trust, or solicit or join or cooperate with or encourage any
institution against the Trust, Transferor, First National Funding Corporation or
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 10.08 shall not operate to preclude any remedy
described in Article V of the Indenture; provided, further, that Owner Trustee
shall not have the power, except upon the direction of the Transferor, to take
any such action with respect to the Trust.
Notwithstanding any prior termination of the Trust or this Agreement,
Transferor shall not at any time institute against the Trust or Certificate
Trust, or solicit or join or cooperate with or encourage any institution against
the Trust or 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 10.08 shall not operate to
preclude any remedy described in Article V of the Indenture.
SECTION 10.09. NO RECOURSE. Each Person holding or owning the Transferor
Interest (or any interest therein), by accepting the Transferor Interest (or its
interest therein), acknowledges
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that the Transferor Interest 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.
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.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
WILMINGTON TRUST COMPANY,
individually and as Owner Trustee
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title Vice President
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FIRST NATIONAL FUNDING LLC
By First National Funding
Corporation, its Managing Member
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title Vice President
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SIGNATURE PAGE OF TRUST AGREEMENT
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
FIRST NATIONAL MASTER NOTE TRUST
This CERTIFICATE OF TRUST of FIRST NATIONAL MASTER NOTE TRUST (the
"Trust"), is being duly executed and filed by WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as trustee, to form a statutory trust under the
Delaware Statutory Trust Act (12 Del. Code, Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is FIRST NATIONAL
MASTER NOTE TRUST.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware is ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has executed this Certificate of Trust as of the date first above written.
WILMINGTON TRUST COMPANY,
as Trustee
By
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Name
-----------------------------------
Title
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