Exhibit 4.4
TRUST AGREEMENT
between
FIRST CONSUMERS NATIONAL BANK,
as Seller,
and
BANKERS TRUST COMPANY,
as Owner Trustee
Dated as of March 1, 2001
TRUST AGREEMENT, dated as of March 1, 2001 (this "Agreement"), between
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FIRST CONSUMERS NATIONAL BANK, a national banking association, as Seller, and
BANKERS TRUST COMPANY, a New York banking corporation as Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.1. Capitalized Terms. Capitalized terms used herein and not
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otherwise defined herein are defined in Annex A to the Master Indenture, dated
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as of the date hereof, between First Consumers Credit Card Master Note Trust and
The Bank of New York.
Section 1.2. Other Definitional Provisions. All terms defined directly
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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 generally accepted accounting principles; (b) terms defined in
Article 9 of the UCC as in effect in the State of Illinois and not otherwise
defined in this Agreement are used as defined in that Article; (c) any reference
to each Rating Agency shall only apply to any specific rating agency if such
rating agency is then rating any outstanding Series; (d) references to any
amount as on deposit or outstanding on any particular date means such amount at
the close of business on such day; (e) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Agreement (or the
certificate or other document in which they are used) as a whole and not to any
particular provision of this Agreement (or such certificate or document); (f)
references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the certificate or other
document in which the reference is made), and references to any paragraph,
Section, clause or other subdivision within any Section or definition refer to
such paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including" means "including without limitation"; (h)
references to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation; (i) references to
any Person include that Person's successors and assigns; and (j) headings are
for purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II
ORGANIZATION
Section 2.1. Name. The trust created hereby shall be known as "First
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Consumers 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 sue and be
sued.
Section 2.2. Office. The office of the Trust shall be in care of the
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Owner Trustee at the Corporate Trust Office or at such other address in the
United States as the Owner Trustee may designate by written notice to the Seller
and the Indenture Trustee.
Section 2.3. Purpose and Powers. The purpose of the Trust is to engage
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in the activities set forth in this Section 2.3. The Trust shall have power and
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authority and is hereby authorized and empowered, without the need for further
action on the part of the Trust, and the Owner Trustee shall have power and
authority, and is hereby authorized and empowered, in the name and on behalf of
the Trust, to do or cause to be done all acts and things necessary, appropriate
or convenient to cause the Trust, to engage in the activities set forth in this
Section 2.3 as follows:
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(i) to execute, deliver and issue the Notes pursuant to the
Indenture, to issue the Seller Interest and to execute, issue and
deliver the Supplemental Certificates, if any, pursuant to this
Agreement;
(ii) with the proceeds of the sale of the Notes, to acquire the
Trust Estate and to pay the Seller the amounts owed pursuant to Section
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2.1 of the Transfer and Servicing Agreement;
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(iii) to assign, grant, pledge and mortgage the Collateral
pursuant to the Indenture and to hold, manage and distribute to the
holders of the Seller Interest pursuant to the terms of this Agreement
and the Transaction Documents any portion of the Collateral released
from the lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into, execute, deliver and perform the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
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(vi) subject to compliance with the Transaction Documents,
to engage in such other activities as may be required in connection
with conservation of the Trust Estate and the making of payments to the
Noteholders and distributions to the holders of the Seller Interest.
The Trust shall not have power, authority or authorization to, and shall not,
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the Transaction Documents.
Section 2.4. Appointment of Owner Trustee. The Seller hereby appoints
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the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
Section 2.5. Initial Capital Contribution of Trust Estate. The Seller
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hereby assigns, transfers, conveys and sets over to the Owner Trustee, as of the
date hereof, the sum of $1. The Owner Trustee hereby acknowledges receipt in
trust from the Seller, as of the date hereof, of the foregoing contribution,
which shall constitute the initial Trust Estate and shall be held by the Owner
Trustee. The Seller shall pay organizational expenses of the Trust as they may
arise or shall, upon the request of the Owner Trustee, promptly reimburse the
Owner Trustee for any such expenses paid by the Owner Trustee.
Section 2.6. Declaration of Trust. The Owner Trustee hereby declares
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that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Seller, subject to the
obligations of the Trust under the Transaction Documents to which it is a party.
It is the intention of the parties hereto that the Trust constitute a trust
under the laws of the State of Illinois and that this Agreement constitute the
governing instrument of such trust. It is the intention of the parties hereto
that, for income tax purposes, the Trust shall be treated as a security device
and disregarded as an entity and its assets shall be treated as owned in whole
by the Seller. The parties hereto agree that they will take no action contrary
to the foregoing intention. Effective as of the date hereof, the Owner Trustee
shall have all rights, powers and authority set forth herein and, to the extent
not inconsistent herewith, in the laws of the State of Illinois with respect to
accomplishing the purposes of the Trust.
Section 2.7. Title to Trust Property. Legal title to all the Trust
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Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
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Section 2.8. Situs of Trust. The Trust will be located and administered
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in the State of New York. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of New York. The Trust shall
not have any employees in any state other than New York or Illinois; provided,
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however, that nothing herein shall restrict or prohibit the Owner Trustee from
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having employees within or without the State of New York. Payments will be
received by the Trust only in New York or Illinois, and payments will be made by
the Trust only from New York or Illinois. The only office of the Trust will be
at the Corporate Trust Office.
Section 2.9. Representations and Warranties of Seller. The Seller
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hereby represents and warrants to the Owner Trustee (as such or in its
individual capacity) that:
(a) The Seller is a national banking association duly organized and
validly existing in good standing under the laws of the United States and has
full corporate power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under the
Transaction Documents to which it is a party and to perform its obligations as
contemplated thereby.
(b) The Seller is duly qualified to do business and is in good
standing (or is exempt from such requirement) in any State required in order to
conduct its business, and has obtained all necessary licenses and approvals with
respect to the Seller, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would have a material adverse effect on its
ability to perform its obligations under the Transaction Documents to which it
is a party.
(c) The execution and delivery of this Agreement and the consummation
of the transactions provided for the Transaction Documents to which the Seller
is a party have been duly authorized by the Seller by all necessary corporate
action on its part. The Seller has the power and authority to assign the
property to be assigned to and deposited with the Trust pursuant to Section 2.5
of this Agreement and Section 2.1 of the Transfer and Servicing Agreement.
(d) The execution and delivery of the Transaction Documents to which
the Seller is a party, the performance of the transactions contemplated by the
Transaction Documents to which the Seller is a party and the fulfillment of the
terms hereof and thereof will not conflict with or violate any Requirements of
Law applicable to the Seller, or conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the Seller is a
party or by which it or any of its properties are bound (other than violations
of such indentures, contracts, agreements,
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mortgages, deeds of trust or other instruments which, individually or in the
aggregate, would not have a material adverse effect on the Seller's ability to
perform its obligations under this Agreement).
(e) There are no proceedings or investigations pending or, to the
best knowledge of the Seller, threatened, against the Seller before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over the Seller (i) asserting the invalidity
of any of the Transaction Documents to which the Seller is a party, (ii) seeking
to prevent the consummation of any of the transactions contemplated by any of
the Transaction Documents to which the Seller is a party, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Seller, would
materially and adversely affect the performance by the Seller of its obligations
under the Transaction Documents to which the Seller is a party, or (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of the Transaction Documents to which the Seller is a
party.
(f) This Agreement is legal, valid and enforceable against the
Seller.
Section 2.10. Liability of Beneficiaries. The holders of the Seller
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Interest shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
ARTICLE III
BENEFICIAL INTERESTS
Section 3.1. Initial Ownership. The Seller, as the holder of the
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Seller Interest (i) shall initially be the only beneficial owner of the Trust
and (ii) shall be bound by the provisions of this Trust Agreement.
Section 3.2. Seller Interest. The Seller Interest shall represent an
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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 Seller Interest.
Section 3.3. Form of Seller Interest. The Seller Interest shall be an
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uncertificated interest in the Trust.
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Section 3.4. Restrictions on Transfer; Issuance of Supplemental
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Certificates. At any time the Seller may sell, transfer, assign, participate,
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pledge or otherwise dispose of the Seller Interest (or any interest therein) or
may direct the Owner Trustee to issue a certificate representing an interest in
the Seller Interest (a "Supplemental Certificate"). The form and terms of any
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interest in the Seller Interest or any Supplemental Certificate held by each
such additional holder shall be defined in a supplement (a "Seller Interest
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Supplement") to this Agreement (which Seller Interest Supplement shall be
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subject to Section 10.1 to the extent that it amends any of the terms of this
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Agreement) to be delivered to or upon the order of the Seller. The sale,
transfer, assignment, participation, pledge or other disposition of the Seller
Interest (or any interest therein) to any Person other than an Affiliate of
Seller or the issuance of any such Supplemental Certificate to any Person other
than an Affiliate of Seller shall be subject to satisfaction of the following
conditions:
(i) on or before the fifth day immediately preceding the
issuance, the Seller shall have given the Owner Trustee, the Servicer,
the Indenture Trustee and each Rating Agency notice (unless such notice
requirement is otherwise waived) of such action;
(ii) the Seller shall have delivered to the Owner Trustee and
the Indenture Trustee the related Seller Interest Supplement in form
satisfactory to the Owner Trustee and the Indenture Trustee, executed
by each party hereto;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such action;
(iv) such action will not result in any Adverse Effect and the
Seller shall have delivered to the Owner Trustee and the Indenture
Trustee an Officer's Certificate, dated the date of such action to the
effect that the Seller reasonably believes that such action will not,
based on the facts known to such officer at the time of such
certification, have an Adverse Effect and that all other conditions to
such action have been satisfied;
(v) the Seller shall have delivered to the Owner Trustee and
Indenture Trustee (with a copy to each Rating Agency) a Tax Opinion,
dated the date of such action with respect to such action and Opinions
of Counsel to the effect that (A) such action will not subject the
Trust to any state income tax or to the Illinois Personal Property
Replacement Tax, and (B) such action, assignment, participation, pledge
or other disposition does not require registration of the interest
under the Securities Act or any state securities law except for any
such registration that has been duly completed and become effective;
and
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(vi) the Aggregate Principal Balance shall not be less than
the Minimum Aggregate Principal Balance, as of the date of such action
after giving effect to such action.
Notwithstanding the foregoing, any Supplemental Certificate or any interest in
the Seller Interest held by the Seller or any other Person at any time on or
after the date of its initial issuance may be transferred or exchanged only upon
the delivery to the Owner Trustee and Indenture Trustee of a Tax Opinion dated
as of the date of such transfer or exchange, as the case may be, with respect to
such transfer or exchange, and compliance with any applicable Seller Interest
Supplement.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. Prior Notice to Seller with Respect to Certain Matters.
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With respect to the following matters, unless otherwise instructed by the
Seller, the Trust shall not take action unless at least thirty (30) days before
the taking of such action the Owner Trustee shall have notified the Seller:
(a) the initiation of any claim or lawsuit by the Trust (other than
an action to collect on the Trust Estate) and the settlement of any action,
claim or lawsuit brought by or against the Trust (other than an action to
collect on the Trust Estate);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Seller;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of the
Seller; or
(e) the appointment pursuant to the Indenture of a replacement or
successor Transfer Agent and Registrar or Indenture Trustee, or the consent to
the assignment by the Transfer Agent and Registrar, Administrator or Indenture
Trustee of its obligations under the Indenture.
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Section 4.2. Restrictions on Power. The Owner Trustee shall not be
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required to take or refrain from taking any action if such action or inaction
would be contrary to any obligation of the Trust or the Owner Trustee (as such
or in its individual capacity) under any of the Transaction Documents or would
be contrary to Section 2.3.
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(b) The Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated by the Transaction Documents.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.1. General Authority. Each of the Trust and the Owner Trustee
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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 the Seller shall approve as evidenced
conclusively by the Owner Trustee's execution thereof and the Seller's execution
of the related documents. In addition to the foregoing, the Owner Trustee in the
name and on behalf of the Trust shall also have power and authority and is
hereby authorized and empowered, but shall not be obligated, to take all actions
required of the Trust pursuant to the Transaction Documents. The Owner Trustee
in the name and on behalf of the Trust shall also have power and authority and
is hereby authorized and empowered from time to time to take such action as the
Seller or the Administrator directs in writing with respect to the Transaction
Documents.
Section 5.2. General Duties. It shall be the duty of the Owner Trustee
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to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which the
Trust is a party and to administer the Trust in the interest of the Seller,
subject to the Transaction Documents and in accordance with the provisions of
this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement or another Transaction Document to perform any act or
to discharge any duty of the Owner Trustee or the Trust under any Transaction
Document, and the Owner Trustee shall not be personally liable for the default
or failure of the Administrator to carry out its obligations under the
Administration Agreement.
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Section 5.3. Action Upon Instruction.
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(a) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in personal liability on the part of the Owner
Trustee or is contrary to the terms of any Transaction Document or is otherwise
contrary to law.
(b) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of any
Transaction Document, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Seller requesting
instruction as to the course of action to be adopted, and to the extent the
Owner Trustee acts or refrains from acting in good faith in accordance with any
such instruction of the Seller received, the Owner Trustee shall not be
personally liable on account of such action or inaction to any Person. If the
Owner Trustee shall not have received appropriate instruction within ten (10)
days of such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not in
violation of the Transaction Documents, as it shall deem to be in the best
interest of the Seller, and shall have no personal liability to any Person for
such action or inaction.
(c) In the event that the Owner Trustee is unsure as to the
application of any provision of any Transaction Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Seller requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the Owner
Trustee shall not be personally liable, on account of such action or inaction,
to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten (10) days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not in violation of the Transaction Documents, as it shall
deem to be in the best interests of the Seller, and shall have no personal
liability to any Person for such action or inaction.
Section 5.4. No Duties Except as Specified in this Agreement or in
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Instructions. The Owner Trustee shall not have any duty or obligation to manage,
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make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust or the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 5.3; and no
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implied duties or obligations shall be read into any Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
any filing or recording, including filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it or the Trust
hereunder or to prepare or file any Commission filing for the Trust or to record
any Transaction Document. The Owner Trustee in its individual capacity
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, the Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Trust Estate or the transactions contemplated by the Transaction
Documents.
Section 5.5. No Action Except under Specified Documents or
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Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
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or otherwise deal with any part of the Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the Transaction Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
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Section 5.6. Restrictions. The Owner Trustee shall not take any action
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(a) that, to the actual knowledge of a Responsible Officer of the Owner Trustee,
would violate the purposes of the Trust set forth in Section 2.3 or (b) that, to
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the actual knowledge of a Responsible Officer of the Owner Trustee, would result
in the Trust's becoming taxable as a corporation for federal income tax
purposes. The Seller shall not direct the Owner Trustee to take action that
would violate the provisions of this Section 5.6.
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Section 5.7. Tax Returns. In the event the Trust shall be required to
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file tax returns, the Issuer shall prepare or shall cause to be prepared such
tax returns and shall provide such tax returns to the Owner Trustee for
signature at least five (5) days before such tax returns are due to be filed.
The Issuer, in accordance with the terms of each Indenture Supplement, shall
also prepare or shall cause to be prepared all tax information required by law
to be distributed to Noteholders and shall deliver such information to the Owner
Trustee at least five (5) days prior to the date it is required by law to be
distributed to Noteholders. The Owner Trustee, upon request, will furnish the
Issuer with all such information known to the Owner Trustee as may be reasonably
required in connection with the preparation of all tax returns of the Trust,
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and shall, upon request, execute such returns. In no event shall the Owner
Trustee or the Indenture Trustee be liable for any liabilities, costs or
expenses of the Trust or any Noteholder arising under any tax law, including
federal, state or local income or excise taxes or any other tax imposed on or
measured by income (or any interest or penalty with respect thereto arising from
a failure to comply therewith).
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.1. Acceptance of Trusts and Duties. The Owner Trustee accepts
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the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents. The Owner
Trustee shall not be personally answerable or accountable under any Transaction
Document under any circumstances, except (i) for its own willful misconduct, bad
faith or gross negligence in the performance of its duties or the omission to
perform any such duties or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.3 expressly made by the Owner
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Trustee in its individual capacity. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be personally liable for any error of
judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or the Seller;
(c) the Owner Trustee shall not be personally liable for any error of
judgment made in good faith by the Holder of the Supplemental Certificate;
(d) no provision of this Agreement or any other Transaction Document
shall require the Owner Trustee to expend or risk funds or otherwise incur any
personal financial liability in the exercise or performance of any of its
duties, rights or powers hereunder or under any other Transaction Document, if
the Owner Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it (as such and in its individual capacity);
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(e) under no circumstances shall the Owner Trustee be personally
liable for indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(f) the Owner Trustee shall not be personally responsible for or in
respect of the validity or sufficiency of this Agreement, the due execution
hereof by the Seller or the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate, the Transaction Documents, the Notes or the
Seller Interest, and the Owner Trustee shall in no event assume or incur any
personal liability, duty, or obligation to any Noteholder, the Seller, any
holder of the Seller Interest or any other Person, other than as expressly
provided for herein or expressly agreed to in the other Transaction Documents;
(g) the Owner Trustee shall not be personally liable for the default
or misconduct of the Seller, the Servicer, the Administrator or the Indenture
Trustee or any other Person under any of the Transaction Documents or otherwise,
and the Owner Trustee shall have no obligation or personal liability to perform
the obligations of the Trust under the Transaction Documents, including those
that are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer under the
Transfer and Servicing Agreement;
(h) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to any
Transaction Document, at the request, order or direction of the Seller, unless
the Seller has offered to the Owner Trustee (as such and in its individual
capacity) security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by the Owner Trustee therein or thereby.
The right of the Owner Trustee to perform any discretionary act enumerated in
any Transaction Document shall not be construed as a duty, and the Owner Trustee
shall not be answerable or personally liable to any Person for any such act
other than liability to the Trust and the beneficial owners of the Trust for its
own gross negligence, bad faith or willful misconduct in the performance of any
such act or the omission to perform any such act; and
(i) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction other
than in the State of New York or Illinois if the taking of such action will (i)
require the registration with, licensing by or the taking of any other similar
action in respect of, any State or other governmental authority or agency of any
jurisdiction other than the State of New York or Illinois by or with respect to
the Owner Trustee (as such or in its individual capacity); (ii) result in any
fee, tax or other governmental charge under the laws of any jurisdiction or any
political subdivisions thereof in existence on the
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date hereof other than the State of New York or Illinois becoming payable by the
Owner Trustee (as such or in its individual capacity); or (iii) subject the
Owner Trustee (as such or in its individual capacity) to personal jurisdiction
in any jurisdiction other than the State of New York or Illinois for causes of
action arising from acts unrelated to the consummation of the transactions by
the Owner Trustee contemplated hereby. The Owner Trustee shall be entitled to
obtain advice of counsel (which advice shall be an expense of the Seller) to
determine whether any action required to be taken pursuant to the Agreement
results in the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence. In the event that said counsel advises the Owner Trustee
that such action will result in such consequences, the Seller shall appoint an
additional trustee pursuant to Section 9.5 to proceed with such action.
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Section 6.2. Furnishing of Documents. The Owner Trustee shall furnish
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to the Seller and the Indenture Trustee, promptly upon written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Transaction Documents.
Section 6.3. Representations and Warranties. The Owner Trustee (as such
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and in its individual capacity) hereby represents and warrants to the Seller
that:
(a) It is a New York banking corporation duly organized and validly
existing in good standing under the laws of the State of New York. It is
qualified as a foreign fiduciary under the laws of the State of Illinois. It has
all requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal, New York or Illinois law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee (as such and in its individual
capacity) or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound.
Section 6.4. Reliance; Advice of Counsel.
---------------------------
13
(a) The Owner Trustee shall incur no personal liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper reasonably
believed by it to be genuine and reasonably believed by it to be signed by the
proper party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any Person as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized officer
of an appropriate Person, as to such fact or matter, and such certificate shall
constitute full protection to the Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be personally liable for the conduct or misconduct
of such agents or attorneys if such agents or attorneys shall have been selected
by the Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be personally liable for anything
done, suffered or omitted in good faith by it in accordance with the written
opinion or written advice of any such counsel, accountants or other such
Persons.
Section 6.5. Not Acting in Individual Capacity. Except as expressly
---------------------------------
provided in this Article VI, in accepting the trusts hereby created, Bankers
----------
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by any Transaction Document shall look only to
the Trust Estate for payment or satisfaction thereof.
Section 6.6. Owner Trustee Not Liable for Notes or Receivables. The
-------------------------------------------------
statements contained herein and in the Notes and other Transaction Documents
(other than the representations and warranties in Section 6.3) shall be taken as
-----------
the statements of the Seller, and the Owner Trustee assumes no responsibility
for the correctness thereof. The Owner Trustee makes no representations as to
the validity or sufficiency of this Agreement or any other Transaction Document,
the Notes or related documents. The Owner Trustee shall at no time have any
responsibility or personal liability for or with respect to the legality,
validity and enforceability of the Receivables or the perfection and priority of
any security interest in the Receivables
14
or the maintenance of any such perfection and priority, or for or with respect
to the sufficiency of the Trust Estate or its ability to generate the payments
to be distributed to the Noteholders under the Indenture, including the
existence, condition and ownership of the Receivables; the existence and
contents of the Receivables on any computer or other record thereof; the
validity of the assignment of the Receivables to the Trust or of any intervening
assignment; the completeness of the Receivables; the performance or enforcement
of the Receivables; the compliance by the Seller with any warranty or
representation made under any Transaction Document or in any related document or
the accuracy of any such warranty or representation or any action of the
Administrator, the Servicer or the Indenture Trustee taken in the name of the
Owner Trustee.
Section 6.7. Owner Trustee May Own Notes. The Owner Trustee in its
---------------------------
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Seller, the Administrator, the Servicer and the Indenture
Trustee in banking transactions with the same rights as it would have if it were
not Owner Trustee.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.1. Owner Trustee's Fees and Expenses. The Owner Trustee (in
---------------------------------
its individual capacity) shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Seller and the Owner Trustee (in its individual capacity) (which
compensation shall not be limited by any law on compensation of a trustee of an
express trust), and the Owner Trustee (in its individual capacity) shall be
entitled to be reimbursed by the Seller for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Owner Trustee may
employ in connection with the exercise and performance of its rights and its
duties hereunder and under the Transaction Documents; provided, however, that
-------- -------
the Owner Trustee shall have no recourse to the assets pledged under the
Indenture with respect to any payments pursuant to this Section 7.1 and the
-----------
Owner Trustee's right to enforce such obligation shall be subject to the
provisions of Section 10.8.
------------
Section 7.2. Indemnification. To the fullest extent permitted by law,
---------------
the Seller shall indemnify, defend and hold harmless the Owner Trustee (as such
and in its individual capacity) and its successors, assigns, directors,
officers, agents, employees and servants (collectively, the "Indemnified
-----------
Parties") from and against, any and all liabilities, obligations, losses,
- -------
damages, taxes, claims, actions and suits, and any and all reasonable costs,
expenses and disbursements (including reasonable
15
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
--------
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of the Transaction Documents, the Trust Estate, the acceptance and
administration of the Trust Estate or any action or inaction of the Owner
Trustee; provided that the Seller shall not be liable for or required to
--------
indemnify any Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 6.1 or
-----------
Expenses for which indemnification is actually received under other Transaction
Documents; provided further that the Seller shall not be liable for or required
to indemnify an Indemnified Party from and against expenses arising or resulting
from (i) the Indemnified Party's own willful misconduct, bad faith or gross
negligence, or (ii) the inaccuracy of any representation or warranty contained
in Section 6.3. No Indemnified Party shall have recourse to the assets pledged
-----------
under the Indenture with respect to any Expenses payable by the Seller pursuant
to this Section 7.2. An Indemnified Party's right to enforce such obligation
-----------
shall be subject to the provisions of Section 10.8. The indemnities contained in
------------
this Section 7.2 shall survive the resignation and termination of the Owner
-----------
Trustee or the termination of this Agreement.
Section 7.3. Payments to the Owner Trustee. Any amounts paid to an
-----------------------------
Indemnified Party pursuant to this Article VII shall not be construed to be a
-----------
part of the Trust Estate.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.1. Termination of Trust Agreement.
------------------------------
(a) The Trust shall dissolve upon the date specified by the Seller
(the "Trust Termination Date", written notice of which shall be provided to the
----------------------
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, and shall in no event be later than the Scheduled
Trust Termination Date. After satisfaction of liabilities of the Trust as
provided by applicable law, any money or other property held as part of the
Trust Estate following such distribution shall be distributed to the Seller. The
bankruptcy, liquidation, dissolution, termination, death or incapacity of the
Seller shall not (x) operate to terminate this Agreement or annul, dissolve or
terminate the Trust, or (y) entitle the Seller's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Estate or (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
16
(b) Except as provided in Section 8.1(a), neither the Seller nor any
--------------
holder of the Seller Interest shall be entitled to revoke, dissolve or terminate
the Trust.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.1. Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times be a Person within the State of Illinois, or
authorized to act as a foreign fiduciary within the State of Illinois;
authorized to exercise trust powers; having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or state
authorities; and having (or having a parent which has) a rating of at least Baa3
by Moody's, at least BBB- by Standard & Poor's and, if rated by Fitch, at least
BBB- by Fitch, or otherwise satisfactory to each Rating Agency. 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 the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section
-------
9.1, the Owner Trustee shall resign immediately in the manner and with the
- ---
effect specified in Section 9.2.
-----------
Section 9.2. Resignation or Removal of Owner Trustee. The Owner Trustee
---------------------------------------
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Seller; provided, however, that such
-------- -------
resignation and discharge shall only be effective upon the appointment of a
successor Owner Trustee. Upon receiving such notice of resignation, the Seller
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within thirty
(30) days after the giving of such notice of resignation, the resigning Owner
Trustee at the expense of the Seller may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
-----------
written request therefor by the Seller, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation,
17
conservation or liquidation, then the Seller may, but shall not be required to,
remove the Owner Trustee. If the Seller shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Seller shall promptly (i)
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee and (ii) pay all amounts owed to the
outgoing Owner Trustee in its individual capacity.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 9.2
-----------
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.3 and, in the case of removal, payment of
-----------
all fees and expenses owed to the outgoing Owner Trustee (as such or in its
individual capacity). The Seller shall provide notice of such resignation or
removal of the Owner Trustee to each Rating Agency.
Section 9.3. Successor Owner Trustee. Any successor Owner Trustee
-----------------------
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to the
-----------
Seller and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Seller and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 9.3 unless at the time of such acceptance such successor Owner Trustee
- -----------
shall be eligible pursuant to Section 9.1.
-----------
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section 9.3, the Seller shall mail notice of such acceptance of appointment
-----------
including the name of such successor Owner Trustee to the Seller, the Indenture
Trustee, the Noteholders and each Rating Agency. If the Seller shall fail to
mail such notice within ten (10) days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of the Seller.
18
Section 9.4. Merger or Consolidation of Owner Trustee. Notwithstanding
----------------------------------------
anything herein to the contrary, any Person into which the Owner Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Owner Trustee, shall be the successor of
the Owner Trustee hereunder (provided that such Person shall meet the
--------
eligibility requirements set forth in Section 9.1), without the execution or
-----------
filing of any instrument or any further act on the part of any of the parties
hereto; provided further that the Owner Trustee shall mail notice of such merger
-------- -------
or consolidation to each Rating Agency and each Series Enhancer.
Section 9.5. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Seller and the Owner Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by each of the Seller and
the Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Estate,
and to vest in such Person, in such capacity, such title to the Trust, or any
part thereof, and, subject to the other provisions of this Section 9.5, such
-----------
powers, duties, obligations, rights and trusts as the Seller and the Owner
Trustee may consider necessary or desirable. If the Seller shall not have joined
in such appointment within fifteen (15) days after the receipt by it of a
request so to do, the Owner Trustee alone shall have the power to make such
appointment. no co- trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
Section 9.1 and no notice of the appointment of any co-trustee or separate
- -----------
trustee shall be required pursuant to Section 9.3.
-----------
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and
19
performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Seller and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article IX. Each separate trustee and co-trustee, upon
----------
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Seller.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE X
MISCELLANEOUS
Section 10.1. Supplements and Amendments. This Agreement may be amended
--------------------------
from time to time, by a written amendment duly executed and delivered by the
Seller and the Owner Trustee, without the consent of any of the Noteholders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
to add any other provisions with respect to matters or questions raised under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such amendment will not, as evidenced by an
-------- -------
Officer's Certificate of the Seller addressed and delivered to the Owner Trustee
and the Indenture Trustee, materially and adversely affect the interest of any
Noteholder. In addition, this Agreement may be amended from time to time, by a
written
20
amendment duly executed and delivered by the Seller and the Owner Trustee,
without the consent of any of the Noteholders, and upon satisfaction of the
Rating Agency Condition, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the Noteholders; provided, however, that
-------- -------
such amendment will not (i) as evidenced by an Officer's Certificate of the
Seller addressed and delivered to the Owner Trustee and the Indenture Trustee,
materially and adversely affect the interest of any Noteholder and (ii) as
evidenced by an Opinion of Counsel addressed and delivered to the Owner Trustee
and the Indenture Trustee, cause the Trust to be classified as an association
(or a publicly traded partnership) taxable as a corporation for federal income
tax purposes; provided, further, that Section 2.3 of this Agreement may be
-------- ------- -----------
amended only with the consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes. Additionally, notwithstanding
the preceding sentence, this Agreement will be amended by the Seller and the
Owner Trustee without the consent of the Indenture Trustee or any of the
Noteholders to add, modify or eliminate such provisions as may be necessary or
advisable in order to enable all or a portion of the Trust (i) to qualify as,
and to permit an election to be made to cause the Trust to be treated as, a
"financial asset securitization investment trust" as described in the provisions
of Section 860L of the Code, and (ii) to avoid the imposition of state or local
income or franchise taxes imposed on the Trust's property or its income;
provided, however, that (i) the Seller delivers to the Indenture Trustee and the
- -------- -------
Owner Trustee an Officer's Certificate to the effect that the proposed
amendments meet the requirements set forth in this subsection, (ii) the Rating
Agency Condition shall have been satisfied with respect to such amendment and
(iii) such amendment does not affect the rights, benefits, protections,
privileges, immunities, duties or obligations of the Owner Trustee hereunder.
The amendments which the Seller may make without the consent of Noteholders
pursuant to the preceding sentence may include the addition of a Seller of
Receivables.
This Agreement may also be amended from time to time by a written
amendment duly executed and delivered by the Seller and the Owner Trustee, with
the consent of the Indenture Trustee and the Holders of Notes evidencing not
less than 66 2/3% of the Outstanding Amount of the Notes, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Noteholders; provided, however, that without the consent of all Noteholders, no
-------- -------
such amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of distributions that are required to be made for
the benefit of the Noteholders or (b) reduce the aforesaid percentage of the
Outstanding Amount of the Notes, the Holders of which are required to consent to
any such amendment; provided further, that such amendment will not, (i) as
-------- -------
evidenced by an Officer's Certificate of the Seller addressed and delivered to
the Owner Trustee and the Indenture Trustee, cause the
21
Trust to fail to be treated as a "qualified special purpose entity" as defined
in SFAS Statement No. 125 or 140 and (ii) as evidenced by an Opinion of Counsel
addressed and delivered to the Owner Trustee and the Indenture Trustee, cause
the Trust to be classified as an association (or a publicly traded partnership)
taxable as a corporation for federal income tax purposes.
Promptly after the execution of any such amendment or consent, the
Seller shall furnish written notification of the substance of such amendment or
consent to the Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Noteholders pursuant
to this Section 10.1 to approve the particular form of any proposed amendment or
------------
consent, but it shall be sufficient if such consent shall approve the substance
thereof
The Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer's Certificate of the Seller to the effect
that the conditions to amendment have been satisfied.
The Owner Trustee may, but shall not be obligated to, enter into, and
unless it has consented thereto in writing shall not be bound by, any amendment
which affects the Owner Trustee's own rights, duties, benefits, protections,
privileges or immunities (as such or in its individual capacity) under this
Agreement or otherwise.
Section 10.2. No Legal Title to Trust Estate in Seller. The Seller
----------------------------------------
shall not have legal title to any part of the Trust Estate. No transfer, by
operation of law or otherwise, of any right, title, and interest of the Seller
to and in its undivided beneficial interest in the Trust Estate shall operate to
terminate this Agreement or annul, dissolve or terminate the Trust or entitle
any transferee to an accounting or to the transfer to it of legal title to any
part of the Trust Estate.
Section 10.3. Limitations on Rights of Others. The provisions of this
-------------------------------
Agreement are solely for the benefit of the Owner Trustee (as such or in its
individual capacity), the other Indemnified Parties, the Seller, and, to the
extent expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 10.4. Notices. Unless otherwise expressly specified or
-------
permitted by the terms hereof, all notices and other communications shall be in
writing and shall be deemed given upon receipt by the intended recipient or
three (3) Business Days after mailing if mailed by certified mail, postage
prepaid (except that notice to the
22
Owner Trustee, the Seller or Indenture Trustee shall be deemed given only upon
actual receipt by the Owner Trustee, the Seller or Indenture Trustee), if to the
Owner Trustee, addressed to the Corporate Trust Office; if to the Indenture
Trustee, addressed to The Bank of New York, 2 North LaSalle Street, Suite 1020,
Chicago, Illinois 60602; if to the Seller, addressed to First Consumers National
Bank, 9300 S.W. Gemini Drive, Beaverton, Oregon 97008; 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, the Seller
and its permitted assignees and the Owner Trustee (as such or in its individual
capacity) and its successors, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Seller shall
bind the successors and assigns of the Seller.
Section 10.8. Non-petition Covenants. Notwithstanding any prior
----------------------
termination of the Trust or this Agreement, Bankers Trust Company, individually
or in its capacity as Owner Trustee, shall not at any time with respect to the
Trust or First Consumers Master Trust, acquiesce, petition or otherwise invoke
or cause the Trust or First Consumers Master Trust to invoke the process of any
court or governmental authority for the purpose of commencing or sustaining a
case against the Trust or First Consumers Master Trust under any federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
conservator, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or First Consumers Master Trust or any substantial
part of their respective properties, or ordering the winding up or liquidation
of the affairs of the Trust or First Consumers Master Trust; 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,
the Seller shall not at any time with respect to the Trust or First Consumers
Master Trust,
23
acquiesce, petition or otherwise invoke or cause the Trust or First Consumers
Master Trust to invoke the process of any court or governmental authority for
the purpose of commencing or sustaining a case against the Trust or First
Consumers Master Trust under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, conservator, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or First
Consumers Master Trust or any substantial part of their respective properties,
or ordering the winding up or liquidation of the affairs of the Trust or First
Consumers Master Trust; provided, however, that this Section 10.8 shall not
-------- ------- ------------
operate to preclude any remedy described in Article V of the Indenture.
---------
Section 10.9. No Recourse. Each Person holding or owning the Seller
-----------
Interest (or any interest therein), by accepting the Seller Interest (or its
interest therein), acknowledges that the Seller Interest does not represent an
interest in or obligation of the Servicer, the Owner Trustee (as such or in its
individual capacity), the Indenture Trustee or any Affiliate thereof (other than
the Trust), and no recourse may be had against such parties or their assets, or
against the assets pledged under the Indenture, except as expressly provided in
the Transaction Documents.
Section 10.10. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Integration of Documents. This Agreement constitutes the
------------------------
entire agreement of the parties hereto and thereto with respect to the subject
matter hereof and supersedes all prior agreements relating to the subject matter
hereof.
[Signature Page to Follow]
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
BANKERS TRUST COMPANY,
as Owner Trustee
By: /s/ Eileen M. Hughes
--------------------
Name: Eileen M. Hughes
Title: Vice President
FIRST CONSUMERS NATIONAL BANK,
as Seller
By: /s/ John R. Steele
------------------
Name: John R. Steele
Title: Treasurer
First Consumers Credit Card Master Note Trust
Trust Agreement Signature Page
25
TABLE OF CONTENTS
Page
||
ARTICLE I DEFINITIONS................................................................... 1
Section 1.1. Capitalized Terms............................................. 1
Section 1.2. Other Definitional Provisions................................. 1
ARTICLE II ORGANIZATION.................................................................. 2
Section 2.1. Name.......................................................... 2
Section 2.2. Office........................................................ 2
Section 2.3. Purpose and Powers............................................ 2
Section 2.4. Appointment of Owner Trustee.................................. 3
Section 2.5. Initial Capital Contribution of Trust Estate.................. 3
Section 2.6. Declaration of Trust.......................................... 3
Section 2.7. Title to Trust Property....................................... 3
Section 2.8. Situs of Trust................................................ 3
Section 2.9. Representations and Warranties of Seller...................... 4
Section 2.10. Liability of Beneficiaries.................................... 5
ARTICLE III BENEFICIAL INTERESTS.......................................................... 5
Section 3.1. Initial Ownership............................................. 5
Section 3.2. Seller Interest............................................... 5
Section 3.3. Form of Seller Interest...................................... 5
Section 3.4. Restrictions on Transfer; Issuance of
Supplemental Certificates..................................... 5
ARTICLE IV ACTIONS BY OWNER TRUSTEE...................................................... 7
Section 4.1. Prior Notice to Seller with Respect to
Certain Matters............................................... 7
Section 4.2. Restrictions on Power......................................... 7
ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE......................................... 8
Section 5.1. General Authority............................................. 8
Section 5.2. General Duties................................................ 8
Section 5.3. Action Upon Instruction....................................... 8
Section 5.4. No Duties Except as Specified in this
Agreement or in Instructions.................................. 9
Section 5.5. No Action Except under Specified
Documents or Instructions..................................... 10
Section 5.6. Restrictions.................................................. 10
Section 5.7. Tax Returns................................................... 10
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ARTICLE VI CONCERNING THE OWNER TRUSTEE........................................... 11
Section 6.1. Acceptance of Trusts and Duties....................... 11
Section 6.2. Furnishing of Documents............................... 13
Section 6.3. Representations and Warranties........................ 13
Section 6.4. Reliance; Advice of Counsel........................... 13
Section 6.5. Not Acting in Individual Capacity..................... 14
Section 6.6. Owner Trustee Not Liable for Notes or Receivables..... 14
Section 6.7. Owner Trustee May Own Notes........................... 15
ARTICLE VII COMPENSATION OF OWNER TRUSTEE.......................................... 15
Section 7.1. Owner Trustee's Fees and Expenses..................... 15
Section 7.2. Indemnification....................................... 15
Section 7.3. Payments to the Owner Trustee......................... 16
ARTICLE VIII TERMINATION OF TRUST AGREEMENT......................................... 16
Section 8.1. Termination of Trust Agreement........................ 16
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER
TRUSTEES............................................................... 16
Section 9.1. Eligibility Requirements for Owner Trustee............ 16
Section 9.2. Resignation or Removal of Owner Trustee............... 17
Section 9.3. Successor Owner Trustee............................... 18
Section 9.4. Merger or Consolidation of Owner Trustee.............. 18
Section 9.5. Appointment of Co-Trustee or Separate Trustee......... 18
ARTICLE X MISCELLANEOUS.......................................................... 20
Section 10.1. Supplements and Amendments............................ 20
Section 10.2. No Legal Title to Trust Estate in Seller.............. 22
Section 10.3. Limitations on Rights of Others....................... 22
Section 10.4. Notices............................................... 22
Section 10.5. Severability.......................................... 22
Section 10.6. Separate Counterparts................................. 22
Section 10.7. Successors and Assigns................................ 23
Section 10.8. Non-petition Covenants................................ 23
Section 10.9. No Recourse........................................... 23
Section 10.10. Headings.............................................. 24
Section 10.11. Governing Law......................................... 24
Section 10.12. Integration of Documents.............................. 24
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