Exhibit 10.41
NORDSTROM CREDIT CARD RECEIVABLES LLC,
as Transferor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
AMENDED AND RESTATED TRUST AGREEMENT
Dated as of April 1, 2002
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms............................................................................. 1
Section 1.02. Other Definitional Provisions................................................................. 3
ARTICLE TWO
ORGANIZATION
Section 2.01. Name.......................................................................................... 4
Section 2.02. Office........................................................................................ 4
Section 2.03. Purpose and Powers............................................................................ 4
Section 2.04. Appointment of Owner Trustee.................................................................. 5
Section 2.05. Initial Capital Contribution of Trust Assets.................................................. 5
Section 2.06. Declaration of Trust.......................................................................... 5
Section 2.07. Title to Trust Property....................................................................... 5
Section 2.08. Situs of Trust................................................................................ 5
Section 2.09. Representations and Warranties of Transferor.................................................. 6
Section 2.10. Liability of Certificateholders............................................................... 7
ARTICLE THREE
CERTIFICATES
Section 3.01. Initial Ownership............................................................................. 8
Section 3.02. Form of Certificates.......................................................................... 8
Section 3.03. Authentication of Certificates................................................................ 8
Section 3.04. Restrictions on Transfer...................................................................... 8
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.............................................. 9
Section 3.06. Issuance of New Transferor Certificates....................................................... 9
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owner and Transferor with Respect to Certain Matters.......................... 11
Section 4.02. Restrictions on Power......................................................................... 11
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ARTICLE FIVE
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority............................................................................. 12
Section 5.02. General Duties................................................................................ 12
Section 5.03. Action Upon Instruction....................................................................... 12
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions............................ 13
Section 5.05. No Action Except under Specified Documents or Instructions.................................... 13
Section 5.06. Restrictions.................................................................................. 13
ARTICLE SIX
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties............................................................... 15
Section 6.02. Furnishing of Documents....................................................................... 16
Section 6.03. Representations and Warranties................................................................ 16
Section 6.04. Reliance; Advice of Counsel................................................................... 17
Section 6.05. Not Acting in Individual Capacity............................................................. 18
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or Receivables............................... 18
Section 6.07. Owner Trustee May Own Notes................................................................... 18
ARTICLE SEVEN
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses............................................................. 19
Section 7.02. Indemnification............................................................................... 19
Section 7.03. Payments to the Owner Trustee................................................................. 19
ARTICLE EIGHT
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement................................................................ 20
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ARTICLE NINE
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee.................................................... 21
Section 9.02. Resignation or Removal of Owner Trustee....................................................... 21
Section 9.03. Successor Owner Trustee....................................................................... 22
Section 9.04. Merger or Consolidation of Owner Trustee...................................................... 22
Section 9.05. Appointment of Co-Trustee or Separate Trustee................................................. 22
ARTICLE TEN
TAX MATTERS
Section 10.01. Tax and Accounting Characterization.......................................................... 24
Section 10.02. Signature on Returns; Tax Matters Partner.................................................... 24
Section 10.03. Tax Reporting................................................................................ 24
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments................................................................... 25
Section 11.02. No Legal Title to Trust Assets in Transferor................................................. 26
Section 11.03. Limitations on Rights of Others.............................................................. 26
Section 11.04. Notices...................................................................................... 26
Section 11.05. Severability................................................................................. 27
Section 11.06. Counterparts................................................................................. 27
Section 11.07. Successors and Assigns....................................................................... 27
Section 11.08. Third-Party Beneficiaries.................................................................... 27
Section 11.09. Nonpetition Covenants........................................................................ 27
Section 11.10. No Recourse.................................................................................. 27
Section 11.11. Effect of Headings and Table of Contents..................................................... 27
Section 11.12. GOVERNING LAW................................................................................ 27
Section 11.13. Acceptance of Terms of Agreement............................................................. 28
Section 11.14. Merger and Integration....................................................................... 28
Section 11.15. Certificates Nonassessable and Fully Paid.................................................... 28
Exhibit A - Form of Ownership Interest Certificate.................................................... A-1
Exhibit B - Form of Transferor Certificate............................................................ B-1
Exhibit C - Form of Certificate of Trust.............................................................. C-1
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of April 1, 2002,
is between Nordstrom Credit Card Receivables LLC, a Delaware limited liability
company, as Transferor, and Wilmington Trust Company, a Delaware banking
corporation, as Owner Trustee.
ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms. Whenever used in this Agreement,
the following words and phrases shall have the meanings set forth below:
"Administration Agreement" means the administration agreement, dated as
of April 1, 2002, between the Issuer and the Bank, as amended or supplemented
from time to time.
"Administrator" means the Bank, in its capacity as Administrator under
the Administration Agreement, or any successor in such capacity.
"Agreement" means this Amended and Restated Trust Agreement, as amended
or supplemented from time to time.
"Bank" means Nordstrom fsb and its successors.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as amended or supplemented from time to
time.
"Certificate of Trust" means the Certificate of Trust in the form
attached hereto as Exhibit C which has been filed for the Trust pursuant to
Section 3810(a) of the Business Trust Statute.
"Certificateholder" means a holder of a Certificate.
"Certificates" means, unless otherwise indicated, the Transferor
Certificates, the Supplemental Certificates and the Ownership Interest
Certificate.
"Closing Date" means May 1, 2002.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration (facsimile no. (000) 000-0000); or such other
address as the Owner Trustee may designate by notice to the Transferor, or the
principal corporate trust office of any successor Owner Trustee (the address of
which the successor Owner Trustee will notify the Owner and the Transferor).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Expenses" means 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.
"Indemnified Parties" means the Owner Trustee and its successors,
assigns, directors, officers, agents, employees and servants.
"Indenture" means the Master Indenture, as supplemented by the related
Indenture Supplement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Indenture Supplement" means the indenture supplement pursuant to which
a Series is issued.
"Indenture Trustee" means Xxxxx Fargo Bank Minnesota, National
Association, not in its individual capacity but solely as Indenture Trustee
under the Master Indenture, and its successors.
"Issuer" means the Trust.
"Master Indenture" means the master indenture, dated as of April 1,
2002, between the Trust and the Indenture Trustee, as amended, supplemented or
otherwise modified from time to time.
"Offered Notes" has the meaning set forth in the related Indenture.
"Owner" means the Transferor in its capacity as beneficial owner of the
Trust hereunder, and its successors.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under this Agreement, and its successors.
"Ownership Interest Certificate" means the certificate evidencing the
beneficial ownership interest of the Owner in the Trust, substantially in the
form attached hereto as Exhibit A.
"Secretary of State" means the Secretary of State of the State of
Delaware or any successor thereto.
"Supplemental Certificate" has the meaning specified in Section
3.06(b).
"Transfer and Servicing Agreement" means the transfer and servicing
agreement, dated as of April 1, 2002, among the Issuer, the Transferor, the
Indenture Trustee and the Bank, as amended or supplemented from time to time.
"Transferor" means Nordstrom Credit Card Receivables LLC, and its
successors.
"Transferor Certificate Supplement" has the meaning specified in
Section 3.06(b).
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"Transferor Certificates" means the certificates executed by the Owner
Trustee on behalf of the Trust and authenticated by or on behalf of the Owner
Trustee, substantially in the form attached hereto as Exhibit B.
"Trust" means Nordstrom Credit Card Master Note Trust.
"Trust Assets" has the meaning set forth in the Transfer and Servicing
Agreement.
"Trust Termination Date" means the day on which the rights of all
Series of Notes to receive payment from the Trust have terminated.
Section 1.02. Other Definitional Provisions. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in the Transfer and Servicing Agreement or in the Indenture, as the case may be.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under GAAP. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under GAAP, the definitions contained in this Agreement
or in any such certificate or other document shall control.
(c) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to this Agreement include all Exhibits hereto, (iii) references
to words such as "herein", "hereof" and the like shall refer to this Agreement
as a whole and not to any particular part, Article or Section within this
Agreement, (iv) references to an Article or Section such as "Article One" or
"Section 1.01" and the like shall refer to the applicable Article or Section of
this Agreement, (v) the term "include" and all variations thereof shall mean
"include without limitation", (vi) the term "or" shall include "and/or" and
(vii) the term "proceeds" shall have the meaning ascribed to such term in the
UCC.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The Trust continued hereby shall be known as
"Nordstrom Credit Card Master Note Trust", in which name the Trust and the Owner
Trustee on behalf of the Trust shall each have power and authority and is hereby
authorized and empowered to and may conduct the business of the Trust and may
engage in the activities permitted in this Agreement, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued, to the extent
provided herein. This Agreement amends and restates in its entirety the trust
agreement dated March 25, 2002, between the Transferor and the Owner Trustee.
Section 2.02. Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Owner, the Indenture Trustee and the Transferor.
Section 2.03. Purpose and Powers. The sole purpose of the Trust is to
engage in the activities set forth in this Section. The Trust shall have power
and authority and is hereby authorized and empowered, without the need for
further action on the part of the Trust, and the Owner Trustee shall have power
and authority, and is hereby authorized and empowered, in the name and on behalf
of the Trust, to do or cause to be done all acts and things necessary,
appropriate or convenient to cause the Trust to engage in the activities set
forth in this Section as follows:
(i) to execute, deliver and issue the Notes pursuant to the
Indenture and the Certificates pursuant to this Agreement, and to sell
the Notes upon the written order of the Transferor;
(ii) with the net proceeds of the sale of the Notes, to
acquire the Trust Assets and to pay transactional expenses;
(iii) to pay interest on and principal of the Notes and the
Certificates and any excess collections to the Transferor, as holder of
the Transferor Certificate pursuant to the Series 0000-0 Xxxxxxxxx
Supplement;
(iv) to assign, grant, pledge and mortgage the Collateral
pursuant to the Indenture to the Indenture Trustee as security for the
Notes and to hold, manage and distribute to the Transferor, the Owner
or the Noteholders pursuant to the terms of this Agreement and the
Transaction Documents any portion of the Collateral released from the
lien of, and remitted to the Trust pursuant to, the Indenture;
(v) to enter into, execute, deliver and perform the
Transaction Documents to which it is to be a party;
(vi) 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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(vii) subject to compliance with the Transaction Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Assets and the making of payments to the
Noteholders and the Certificateholders and distributions to the
Transferor.
Notwithstanding the grant of power and authority to the Owner Trustee set forth
herein, the Transferor may, in its sole discretion, sign and file registration
statements on behalf of the Trust under the Securities Act, registering the
offer and sale of Notes or Certificates issued by the Trust and periodic reports
relating to such Notes or Certificates required to be filed under the Exchange
Act, and the rules and regulations of the Commission thereunder. Furthermore,
the Trust shall not have power, authority or authorization to, and shall not,
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the terms of this Agreement or the other
Transaction Documents.
Section 2.04. Appointment of Owner Trustee. The Transferor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and, to the
extent not inconsistent herewith, in the Business Trust Statute, and the Owner
Trustee hereby accepts such appointment.
Section 2.05. Initial Capital Contribution of Trust Assets. The
Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $10.00. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of such date, of the
foregoing contribution, which shall constitute the initial Trust Assets and
shall be held by the Owner Trustee. The Transferor shall pay the 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 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Assets in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, who are
intended to be "beneficial owners" within the meaning of the Business Trust
Statute subject to the obligations of the Trust under the Transaction Documents.
It is the intention of the parties hereto that the Trust constitute a business
trust under the Business Trust Statute and that this Agreement constitute the
governing instrument of such business trust. 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 duties set
forth herein and, to the extent not inconsistent herewith, in the Business Trust
Statute with respect to accomplishing the purposes of the Trust.
Section 2.07. Title to Trust Property. Legal title to the Trust Assets
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
Assets to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located in Delaware and
administered in the State of Delaware and the location of the Administrator. All
bank accounts maintained by the Owner Trustee on behalf of the Trust shall be
located in Washington, Colorado, Delaware or
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New York. The Trust shall not have any employees in any State other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Washington, Colorado, Delaware or
New York, and payments will be made by the Trust only in such States. The only
office of the Trust will be at the Corporate Trust Office.
Section 2.09. Representations and Warranties of Transferor. The
Transferor hereby represents and warrants to the Owner Trustee that:
(a) The Transferor is a limited liability company duly
organized and validly existing in good standing under the laws of the
State of Delaware, with power, authority and legal right to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant
times, and has, power, authority and legal right to acquire, own and
sell the Receivables.
(b) The Transferor is duly qualified to do business as a
limited liability company and is in good standing and has obtained all
necessary licenses and approvals in each jurisdiction in which the
failure to so qualify or to obtain such licenses and approvals would
materially and adversely affect the performance by the Transferor of
its obligations under, or the validity or enforceability of, this
Agreement, any of the other Transaction Documents to which it is a
party, the Receivables, the Notes or the Certificates.
(c) The Transferor has (i) the power and authority to execute
and deliver this Agreement and to carry out its terms, (ii) the power
and authority to transfer the Owner Trust Assets to and deposit the
same with the Trust, (iii) duly authorized such transfer and deposit to
the Trust by all necessary action and (iv) duly authorized the
execution, delivery and performance of this Agreement by all necessary
action.
(d) Each of this Agreement and the other Transaction Documents
to which it is a party constitutes a legal, valid and binding
obligation of the Transferor, enforceable in accordance with its terms,
except as such enforceability may be subject to or limited by
bankruptcy, liquidation, insolvency, reorganization, moratorium,
liquidation, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or in law.
(e) The execution, delivery and performance by the Transferor
of this Agreement and the other Transaction Documents to which the
Transferor is a party, the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time)
a default under, the limited liability company agreement of the
Transferor, or conflict with or violate any of the material terms or
provisions of, or constitute (with or without notice or lapse of time)
a default under, any indenture, agreement or other instrument to which
the Transferor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant
to the terms of any such indenture, agreement or other
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instrument (other than pursuant to the Transaction Documents); nor
violate any law or, to the best of the Transferor's knowledge, any
order, rule or regulation applicable to the Transferor of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Transferor or
its properties; which breach, default, conflict, Lien or violation
would have a material adverse effect on the earnings, business affairs
or business prospects of the Transferor.
(f) There are no proceedings or investigations pending or, to
the Transferor's knowledge, threatened, before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Transferor or its properties: (i)
asserting the invalidity of this Agreement, any of the other
Transaction Documents, the Notes or the Certificates, (ii) seeking to
prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement
and any of the other Transaction Documents or (iii) seeking any
determination or ruling that might materially and adversely affect the
performance by the Transferor of its obligations under, or the validity
or enforceability of, this Agreement, any of the other Transaction
Documents, the Receivables, the Notes or the Certificates.
Section 2.10. Liability of Certificateholders. The Certificateholders
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
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ARTICLE THREE
CERTIFICATES
Section 3.01. Initial Ownership. The Owner as the holder of the
Ownership Interest Certificate, and each Transferor, as the holder of a
Transferor Certificate, (i) shall be the only beneficial owners of the Trust and
(ii) shall be bound by the provisions of this Trust Agreement.
Section 3.02. Form of Certificates.
(a) The Ownership Interest Certificate shall be issued in registered
form in substantially the form attached hereto as Exhibit A and initially
registered as provided in Annex 1 to Exhibit A. A Transferor Certificate shall
be issued in registered form in substantially the form attached hereto as
Exhibit B and initially registered as provided in Annex 1 to Exhibit B.
(b) The Certificates shall be executed by manual or facsimile signature
of the Owner Trustee. The Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall, when duly
authenticated pursuant to Section 3.03, be validly issued and fully paid
undivided beneficial interests in the assets of the Trust and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of the Certificates or did not hold such offices at the date of authentication
and delivery of the Certificates.
Section 3.03. Authentication of Certificates. On the Initial Closing
Date, the Owner Trustee shall execute, authenticate and deliver the Ownership
Interest Certificate and the Transferor Certificate upon the written order of
the Transferor, signed by its chairman of the board, its president, any vice
president, secretary, any assistant treasurer or any authorized signatory,
without further corporate action by the Transferor. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form set forth in Exhibits A and B, respectively, executed
by the Owner Trustee by the manual signature of a duly authorized signatory, and
such certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated, validly issued and
delivered hereunder. Each Certificate shall be dated the date of its
authentication. Upon issuance, execution, authentication and delivery pursuant
to the terms hereof, the Certificateholders shall be entitled to the benefits of
this Agreement.
Section 3.04. Restrictions on Transfer. Except to the extent set forth
in Section 2.07(c) of the Transfer and Servicing Agreement, to the fullest
extent permitted by applicable law, the Certificates (or any interest therein)
may not be sold, transferred, assigned, participated, pledged or otherwise
disposed of to any Person; provided, however, subject to Section 3.06, a
Certificate (or any interest therein) may be sold, transferred, assigned,
participated, pledged or otherwise disposed of if the transferor thereof has
provided the Owner Trustee and the Indenture Trustee with a Tax Opinion relating
to such sale, transfer, assignment, participation, pledge or other disposition.
The Transferor Certificates may not be purchased by or transferred to any
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"employee benefit plan" within the meaning of Section 3(3) of ERISA ( whether or
not subject to ERISA, and including foreign or government plans) or any "plan"
described in Section 4975(e)(1) of the Code, or any entity whose underlying
assets include "plan assets" of any of the foregoing by reason of a plan's
investment in such entity.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate. If (i)
a mutilated Certificate shall be surrendered to the Owner Trustee, or if the
Owner Trustee shall receive evidence to its satisfaction of the destruction,
loss or theft of a Certificate and (ii) there shall be delivered to the Owner
Trustee (as such and in its individual capacity) such security or indemnity as
may be required by it to save it harmless, then the Owner Trustee on behalf of
the Trust shall execute and the Owner Trustee shall authenticate and deliver, in
exchange for or in lieu of the mutilated, destroyed, lost or stolen Certificate,
a new Certificate of like tenor and denomination. In connection with the
issuance of any new Certificate under this Section, the Owner Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge or expense that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of ownership in the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section 3.06. Issuance of New Transferor Certificates.
(a) Taken together, the Transferor Certificates shall represent an
undivided beneficial interest in the Trust Assets, subject to the Lien of the
Indenture Trustee as provided in the Indenture, including the right to receive
Collections with respect to the Receivables and other amounts at the times and
in the amounts specified in the Master Indenture and any Indenture Supplement to
be paid to the Transferor on behalf of all holders of the Transferor
Certificates.
(b) At any time the Transferor may surrender its Transferor Certificate
to the Owner Trustee in exchange for a newly issued Transferor Certificate and a
second certificate (a "Supplemental Certificate"), the form and terms of which
shall be defined in a supplement (a "Transferor Certificate Supplement") to this
Agreement (which Transferor Certificate Supplement shall be subject to Section
11.01 to the extent that it amends any of the terms of this Agreement) to be
delivered to or upon the order of the Transferor. The issuance of any such
Supplemental Certificate shall be subject to satisfaction of the following
conditions:
(i) on or before the fifth day immediately preceding the Transferor
Certificate surrender and exchange, the Transferor shall have given the
Owner Trustee, the Servicer, the Indenture Trustee and each Rating
Agency notice (unless such notice requirement is otherwise waived) of
such Transferor Certificate surrender and exchange;
(ii) the Transferor shall have delivered to the Owner Trustee and
the Indenture Trustee any related Transferor Certificate Supplement in
form satisfactory to the Owner Trustee and the Indenture Trustee,
executed by each party hereto;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such Transferor Certificate surrender and exchange;
(iv) such surrender and exchange will not result in any Adverse
Effect and the Transferor shall have delivered to the Owner Trustee and
the Indenture Trustee an
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Officer's Certificate, dated the date of such surrender and exchange to
the effect that the Transferor reasonably believes that such surrender
and exchange will not, based on the facts known to such officer at the
time of such certification, have an Adverse Effect and that all other
conditions to the issuance of such Supplemental Certificate have been
satisfied;
(v) the Transferor shall have delivered to the Owner Trustee and
Indenture Trustee (with a copy to each Rating Agency) a Tax Opinion,
dated the date of such surrender and exchange with respect to such
surrender and exchange; and
(vi) the aggregate amount of Principal Receivables as of the date
of such surrender and exchange shall be greater than the Required
Minimum Principal Balance as of the date of such surrender and exchange
after giving effect to such surrender and exchange.
Any Supplemental Certificate held by any Person at any time after the
date of its initial issuance may be transferred or exchanged only upon the
delivery to the Owner Trustee and 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.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owner and Transferor with Respect to
Certain Matters. With respect to the following matters, unless otherwise
instructed by the Transferor, the Trust shall not take action unless at least 30
days before the taking of such action the Owner Trustee shall have notified the
Transferor in writing:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of
the Receivables) and the settlement of any action, claim or lawsuit
brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of the Receivables
brought by the Trust);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Master Indenture by a supplemental
indenture or otherwise in circumstances where the consent of any
Noteholder is required;
(d) the amendment of the Master Indenture by a supplemental
indenture or any other Transaction Document to which the Trust is a
party in circumstances where the consent of any Noteholder is not
required and such amendment materially adversely affects the interest
of the Certificateholders;
(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 or add any provision that would
not materially adversely affect the interests of the
Certificateholders; or
(f) the appointment pursuant to the Indenture of a replacement
or successor Transfer Agent and Registrar, Administrator or Indenture
Trustee, or the consent to the assignment by the Transfer Agent and
Registrar, Administrator or Indenture Trustee of its obligations under
the Indenture.
Section 4.02. Restrictions on Power.
(a) The Owner Trustee shall not be required to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under any of the Transaction Documents or
would be contrary to Section 2.03.
(b) The Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement, the Transfer and Servicing Agreement and the
Indenture.
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ARTICLE FIVE
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority. The Owner Trustee shall administer the
Trust in the interest of the Certificateholders, subject to the lien of the
Indenture in accordance with this Agreement. Each of the Trust and the Owner
Trustee in the name and on behalf of the Trust shall have power and authority,
and is hereby authorized and empowered, to execute and deliver the Transaction
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Transaction Documents
to which the Trust is to be a party, or any amendment thereto or other
agreement, in each case in such form as the Transferor shall approve as
evidenced conclusively by the Owner Trustee's execution thereof and the
Transferor's execution of the related documents. In addition to the foregoing,
the Owner Trustee in the name and on behalf of the Trust shall also have power
and authority and is hereby authorized and empowered, but shall not be
obligated, to take all actions required of the Trust pursuant to the Transaction
Documents. The Owner Trustee in the name and on behalf of the Trust shall also
have power and authority and is hereby authorized and empowered from time to
time to take such action as the Transferor or the Administrator directs in
writing with respect to the Transaction Documents.
Section 5.02. General Duties. Subject to Section 2.03, it shall be the
duty of the Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and to administer the
Trust in the interest of the Transferor, subject to the Transaction Documents
and in accordance with the provisions of this Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged (or caused to be
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 liable for the default or failure
of the Administrator to carry out its obligations thereunder.
Section 5.03. Action Upon Instruction.
(a) The Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if the Owner Trustee shall
have reasonably determined, or shall have been advised by counsel, that such
action is likely to result in 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) Subject to Article Four, whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or required by the terms
of any Transaction Document, the Owner Trustee shall promptly give notice (in
such form as shall be appropriate under the circumstances) to the Transferor
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction of the Transferor received, the Owner
Trustee shall not be liable on account of such action or inaction to any Person.
If the Owner Trustee shall not have received appropriate instruction within ten
days of such notice (or within such shorter period of time as
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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 Certificateholders, and shall have no
personal liability to any Person for such action or inaction.
(c) Subject to Article Four, 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 Transferor
requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten 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 Certificateholders, and shall have
no liability to any Person for such action or inaction.
Section 5.04. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust or the Trust Assets, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to Section 5.03; and no
implied duties or obligations shall be read into any Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
any filing or recording, including filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it or the Trust
hereunder or to prepare or file any Commission filing for the Trust or to record
any Transaction Document. The Owner Trustee in its individual capacity
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any Liens (other than the Lien of the
Indenture) on any part of the Trust Assets 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 Assets or the
transactions contemplated by the Transaction Documents.
Section 5.05. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Assets except in accordance with
(i) the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) the Transaction Documents or (iii) any document
or instruction delivered to the Owner Trustee pursuant to Section 5.03.
Section 5.06. Restrictions. The Owner Trustee shall not take any action
(i) that would violate the purposes of the Trust set forth in Section 2.03 or
(ii) that, to the actual knowledge of
13
the Owner Trustee, would result in the Trust becoming taxable as a corporation
for federal income tax purposes. The Transferor shall not direct the Owner
Trustee to take action that would violate the provisions of this Section.
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ARTICLE SIX
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts, but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all monies actually received by it
constituting part of the Trust Assets upon the terms of this Agreement. The
Owner Trustee shall not be 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 the Owner
Trustee in its individual capacity. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made in good faith by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or the Transferor;
(c) no provision of this Agreement or any other Transaction
Document shall require the Owner Trustee to expend or risk its own
funds or otherwise incur any 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;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement, the due
execution hereof by the Transferor or the form, character, genuineness,
sufficiency, value or validity of any of the Trust Assets, the
Transaction Documents, the Notes or the Certificates other than the
genuineness of the Owner Trustee's signature on the Certificates and on
the certificate of authentication on the Certificates, and the Owner
Trustee shall in no event assume or incur any personal liability, duty
or obligation to any Noteholder or to the Owner or any other Person,
other than as expressly provided for herein or expressly agreed to in
the other Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Transferor, the Servicer, the Administrator or the
Indenture Trustee or any other Person under any of the Transaction
Documents or otherwise, and the Owner Trustee shall have no obligation
or personal liability to perform the obligations of the Trust under the
15
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;
(g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Transaction
Document, at the request, order or direction of the Transferor, unless
the Transferor has offered to the Owner Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may
be incurred by the Owner Trustee therein or thereby; the right of the
Owner Trustee to perform any discretionary act enumerated in this
Agreement or any other Transaction Document shall not be construed as a
duty, and the Owner Trustee shall not be answerable or 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 or willful
misconduct in the performance of any such act or the omission to
perform any such act; and
(h) notwithstanding anything contained herein to the contrary,
the Owner Trustee shall not be required to take any action in any
jurisdiction other than in the State of Delaware if the taking of such
action will (i) require the registration with, licensing by or the
taking of any other similar action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the
State of Delaware by or with respect to the Owner Trustee, (ii) result
in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivision thereof in existence on the
date hereof other than the State of Delaware becoming payable by the
Owner Trustee or (iii) subject the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for
causes of action arising from acts unrelated to the consummation of the
transactions by the Owner Trustee contemplated hereby; the Owner
Trustee shall be entitled to obtain advice of counsel (which advice
shall be an expense of the Transferor) to determine whether any action
required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of this
subsection; and in the event that said counsel advises the Owner
Trustee that such action will result in such consequences, the
Transferor shall appoint an additional trustee pursuant to Section 9.05
to proceed with such action.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish
to the Transferor and the Indenture Trustee, promptly upon written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Transferor that:
(a) it is a Delaware banking corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement;
16
(b) it has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf;
(c) neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
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 or result in the imposition of any Lien, charge
or encumbrance on the Trust Assets resulting from actions by or claims
against the Owner Trustee individually that are related to this
Agreement or the other Transaction Documents; and
(d) each of this Agreement and each other Transaction Document
to which it is a party has been duly executed and delivered by it and
constitutes the legal, valid and binding agreement of it, enforceable
against the Owner Trustee in accordance with its terms, except as
enforceability may be limited by bankruptcy, liquidation, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
Section 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and 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 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 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.
17
Section 6.05. Not Acting in Individual Capacity. Except as expressly
provided in this Article, in accepting the trusts hereby created, Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by any Transaction Document shall look only to
the Trust Assets for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or
Receivables. The statements contained herein and in the Certificates, Notes and
other Transaction Documents (other than the genuineness of the signature and
authentication (as applicable) of the Owner Trustee on the Certificates and its
representations and warranties in Section 6.03) shall be taken as the statements
of the Transferor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Transaction Document or the
Certificates (other than the genuineness of the signature and authentication (as
applicable) of the Owner Trustee on the Certificates and its representations and
warranties in Section 6.03), the Notes or related documents. The Owner Trustee
shall at no time have any responsibility or 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 Assets 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 Transferor with any warranty or representation made under any
Transaction Document or in any related document or the accuracy of any such
warranty or representation or any action of the Administrator, the Servicer or
the Indenture Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Transferor, the Administrator, the Servicer and the Indenture
Trustee in banking transactions with the same rights as it would have if it were
not Owner Trustee.
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ARTICLE SEVEN
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof among the Transferor, the Servicer
and the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed
by the Transferor (and if not by the Transferor, by the Servicer) 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 under this Section and the
Owner Trustee's right to enforce such obligation shall be subject to the
provisions of 11.09.
Section 7.02. Indemnification. To the fullest extent permitted by law,
the Transferor (and if not the Transferor, the Servicer) shall indemnify, defend
and hold harmless the Indemnified Parties from and against 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 Assets, the acceptance and administration of the Trust
Assets or any action or inaction of the Owner Trustee; provided that the
Transferor shall not be liable for or required to indemnify any Indemnified
Party from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.01, Expenses for which
indemnification is actually received under other Transaction Documents or income
taxes or any fees received by the Owner Trustee; provided further that the
Transferor shall not be liable for or required to indemnify an Indemnified Party
from and against expenses arising or resulting from (i) the Indemnified Party's
own willful misconduct, bad faith or gross negligence, (ii) income taxes or
(iii) the inaccuracy of any representation or warranty contained in Section
6.03. No Indemnified Party shall have any recourse to the assets pledged under
the Indenture with respect to any Expenses payable by the Transferor pursuant to
this Section. An Indemnified Party's right to enforce such obligation shall be
subject to the provisions of Section 11.09. The indemnities contained in this
Section shall survive the resignation and termination of the Owner Trustee or
the termination of this Agreement. In any event of claim, action or proceeding
for which indemnity will be sought pursuant to this Section, the Indemnified
Party's choice of legal counsel shall be subject to approval of the Transferor,
which approval shall not be unreasonably withheld.
Section 7.03. Payments to the Owner Trustee. Any amounts paid to an
Indemnified Party pursuant to this Article shall not be construed to be a part
of the Trust Assets.
19
ARTICLE EIGHT
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement.
(a) The Trust shall dissolve upon the earlier of (i) at the option of
the Transferor (written notice of which shall be provided to the Owner Trustee),
the Trust Termination Date and (ii) dissolution of the Trust in accordance with
applicable law. After satisfaction of liabilities of the Trust as provided by
applicable law, any money or other property held as part of the Trust Assets
following such distribution shall be distributed to the Transferor. The
bankruptcy, liquidation, dissolution, termination, death or incapacity of the
Transferor shall not (A) operate to terminate this Agreement or annul, dissolve
or terminate the Trust, (B) entitle the Transferor's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Trust Assets or
(C) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Except as provided in Section 8.01(a), the Transferor shall not be
entitled to revoke, dissolve or terminate the Trust. The Owner shall not be
entitled to revoke, dissolve or terminate the Trust.
(c) Upon completion of the winding up of the Trust in accordance with
the Business Trust Statute, the Owner Trustee shall cause the Certificate of
Trust to be canceled by filing a certificate of cancellation with the Secretary
of State in accordance with the provisions of Section 3810 of the Business Trust
Statute and thereupon the Trust and this Agreement (other than Articles Six and
Seven and Section 11.09) shall terminate.
20
ARTICLE NINE
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times (i) be a Person satisfying the provisions of Section
3807(a) of the Business Trust Statute; (ii) be authorized to exercise trust
powers; (iii) have, or have a corporate parent that has, a combined capital and
surplus of at least $50,000,000; (iv) be subject to supervision or examination
by federal or state authorities; and (v) have (or have 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 be acceptable 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, 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, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 9.02.
Section 9.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Transferor; provided, however, that such
resignation and discharge shall only be effective upon the appointment of a
successor Owner Trustee. Upon receiving such notice of resignation, the
Transferor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee at the expense of the Transferor may petition any court
of competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the Transferor, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Transferor may, but shall not be required to, remove the
Owner Trustee. If the Transferor shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Transferor shall promptly
(i) appoint a successor Owner Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee and (ii) pay all amounts
owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section 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. The Transferor shall
provide notice of such resignation or removal of the Owner Trustee to each
Rating Agency.
21
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Transferor and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Transferor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section 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, the Transferor shall mail notice of such acceptance of appointment
including the name of such successor Owner Trustee to the Transferor, the
Indenture Trustee, the Noteholders and each Rating Agency. If the Transferor
shall fail to mail such notice within ten days after acceptance of appointment
by the successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of the Transferor.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, such successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State identifying the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
Section 9.04. Merger or Consolidation of Owner Trustee. Notwithstanding
anything herein to the contrary, any Person into which the Owner Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Owner Trustee, shall be the successor of
the Owner Trustee hereunder (provided that such Person shall meet the
eligibility requirements set forth in Section 9.01), without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto; provided further that (i) the Owner Trustee shall mail notice of such
merger or consolidation to each Rating Agency and (ii) the Owner Trustee shall
file any necessary amendments to the Certificate of Trust with the Secretary of
State.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Assets may at the time be located, the Transferor and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by each of the Transferor
and the Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Assets,
and to vest in such Person, in such
22
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Transferor and the Owner Trustee may consider necessary or
desirable. If the Transferor shall not have joined in such appointment within 15
days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as a
successor trustee pursuant to Section 9.01, and no notice of the appointment of
any co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Transferor and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Transferor.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate 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.
23
ARTICLE TEN
TAX MATTERS
Section 10.01. Tax and Accounting Characterization. It is the intent of
the parties hereto that the Trust not constitute a separate entity for federal
income tax or state income or franchise tax (where such franchise taxes are
based solely upon or measured by net income) purposes. It is the intent of the
Transferor, the Noteholders and the Certificateholders that the Class A Notes be
treated as indebtedness of the Transferor secured by the Trust Assets and the
payments on the Receivables for federal income tax and state income and
franchise tax purposes. If there are multiple Certificateholders at any point in
time for federal, state and local income and franchise tax purposes, it is the
intention of the parties that the Trust qualify as a partnership during the
period there are multiple Certificateholders, with the assets of the partnership
being the Owner Trust Assets and the partners of the partnership being the
Certificateholders and the Notes being debt of the partnership. The parties
agree that the Trust shall not file or cause to be filed annual returns, reports
or other forms and will treat the Trust in a manner consistent with the
characterization that the Trust is not a separate entity for tax purposes unless
there are multiple Certificateholders at the same time or, unless there are
future changes in the federal or state income or franchise tax (where such
franchise taxes are based solely upon or measured by net income) laws, whereby
existing trusts with a single Certificateholder are treated as a separate entity
for purposes of the aforementioned taxes.
Section 10.02. Signature on Returns; Tax Matters Partner.
(a) In the event that the Trust shall be required to file federal or
other income tax returns as a partnership, such returns shall be signed by an
authorized signatory for the Transferor or such other Person as shall be
required by law to sign such returns of the Trust.
(b) By acceptance of its beneficial interest in a Certificate, each
Certificateholder agrees that in the event that the Trust is classified as a
partnership for federal income tax purposes, the Transferor shall be the "tax
matters partner" of the Trust pursuant to the Code so long as the Transferor
holds any Certificate.
Section 10.03. Tax Reporting. Unless otherwise required by appropriate
tax authorities, the Trust shall not file or cause to be filed annual or other
income or franchise tax returns and shall not be required to obtain a taxpayer
identification number.
24
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Transferor and the Owner Trustee,
with the written consent of the Indenture Trustee, but without the consent of
any of the Noteholders, and upon satisfaction of the Rating Agency Condition, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any manner
the rights of the Noteholders; provided, however, that any such amendment will
not (i) in the good faith judgment of the parties thereto, materially 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 2.03 may be amended only with the consent of the Holders
of Notes evidencing not less than a majority of the Outstanding Amount of the
Notes. Additionally, notwithstanding the preceding sentence, this Agreement will
be amended by the Transferor and the Owner Trustee without the consent of the
Indenture Trustee or any of the Noteholders to add, modify or eliminate such
provisions as may be necessary or advisable in order to enable all or a portion
of the Trust (i) to qualify as, and to permit an election to be made to cause
the Trust to be treated as, a "financial asset securitization investment trust"
as described in the provisions of Section 860L of the Code, and (ii) to avoid
the imposition of state or local income or franchise taxes imposed on the
Trust's property or its income; provided, however, that (i) the Transferor
delivers to the Indenture Trustee and the Owner Trustee an Officer's Certificate
to the effect that the proposed amendments meet the requirements set forth in
this Section, (ii) the Rating Agency Condition shall have been satisfied with
respect to such amendment and (iii) such amendment does not affect the rights,
benefits, protections, privileges, immunities, duties or obligations of the
Owner Trustee hereunder. The amendments which the Transferor may make without
the consent of Noteholders pursuant to the preceding sentence may include,
without limitation, the addition of a sale of Receivables.
(b) This Agreement may also be amended from time to time by a written
amendment duly executed and delivered by the Transferor and the Owner Trustee,
with the consent of the Indenture Trustee and the Holders of Notes evidencing
not less than a majority of the Outstanding Amount and upon satisfaction of the
Rating Agency Condition for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders; provided, however, that
without the consent of all Noteholders, no such amendment shall (i) 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
(ii) reduce the aforesaid percentage of the Outstanding Amount of the Notes of
all Series, 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 the Owner Trustee and the Indenture Trustee,
cause the Trust
25
to be classified as an association (or a publicly traded partnership) taxable as
a corporation for federal income tax purposes.
(c) Promptly after the execution of any such amendment or consent, the
Transferor shall furnish written notification of the substance of such amendment
or consent to the Indenture Trustee and each Rating Agency. It shall not be
necessary for the consent of the Noteholders pursuant to this Section to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof.
(d) Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
(e) The Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer's Certificate of the Transferor to the
effect that the conditions to amendment have been satisfied. The Owner Trustee
may, but shall not be obligated to, enter into, and unless it has consented
thereto in writing shall not be bound by, any amendment which affects the Owner
Trustee's own rights, duties, benefits, protections, privileges or immunities
(as such or in its individual capacity) under this Agreement or otherwise.
Section 11.02. No Legal Title to Trust Assets in Transferor. The
Transferor shall not have legal title to any part of the Trust Assets. No
transfer, by operation of law or otherwise, of any right, title, and interest of
the Transferor to and in its undivided beneficial interest in the Trust Assets
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 Assets.
Section 11.03. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the other Indemnified
Parties, the Transferor, the holder of any Certificate and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Assets or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 11.04. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all demands, notices, instructions, directions
and communications under this Agreement shall be in writing and shall be deemed
to have been duly given if personally delivered at, mailed by registered mail,
return receipt requested or sent by facsimile transmission (except that notice
to the Owner Trustee, the Transferor or Indenture Trustee shall be deemed given
only upon actual receipt by the Owner Trustee, the Transferor or Indenture
Trustee), if to (i) the Owner Trustee, addressed to the Corporate Trust Office;
(ii) the Indenture Trustee, addressed to Xxxxx Fargo Bank Minnesota, National
Association, 000 Xxxxxxxxx Xxxxxx, XXX X0000-000, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Asset-Backed Securities (facsimile no. (612)
667-3464); or (iii) the Transferor, addressed to Nordstrom Credit Card
Receivables LLC, 00000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
Legal Department (facsimile no. (000) 000-0000); or as to each party, at such
other address or facsimile number as shall be designated by such party in a
written notice to each other party.
26
Section 11.05. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid or unenforceable, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other covenants, agreements, provisions or
terms of this Agreement or of the Certificates or the rights of the
Certificateholders thereof.
Section 11.06. 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 of which together shall constitute one
and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Transferor, the Owner Trustee and each Certificateholder and their respective
successors and permitted assigns, all to the extent as herein provided. Any
request notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of the Transferor or
such Certificateholder.
Section 11.08. Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise expressly provided in this
Agreement, no other Person will have any right or obligation hereunder.
Section 11.09. Nonpetition Covenants. Notwithstanding any prior
termination of the Trust or this Agreement, the Owner Trustee, individually or
in its capacity as Owner Trustee, and the Transferor shall not, prior to the
date which is one year and one day after the termination of the Trust or this
Agreement, acquiesce, petition or otherwise invoke or cause the Trust to invoke
the process of any court or Governmental Authority for the purpose of commencing
or sustaining a case against the Trust under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, conservator, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Trust or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Trust; provided, however, that this Section
shall not operate to preclude any remedy described in Article Five of the Master
Indenture.
Section 11.10. No Recourse. Each Person holding or owning a
Certificate, by accepting the Certificates, acknowledges that the Certificates
do not represent interest in or obligations of the Servicer, the Owner Trustee,
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 agreed by such party in the
Transaction Documents.
Section 11.11. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
27
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 11.13. Acceptance of Terms of Agreement. The receipt and
acceptance of the Ownership Interest Certificate by the Owner and the Transferor
Certificate by the Transferor, without any signature or further manifestation of
assent, shall constitute the unconditional acceptance by the Owner and the
Transferor, respectively, of all the terms and provisions of this Agreement, and
shall constitute the agreement of the Trust that the terms and provisions of
this Agreement shall be binding, operative and effective as among the Trust, the
Owner and the Transferor.
Section 11.14. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written and oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 11.15. Certificates Nonassessable and Fully Paid.
Certificateholders shall not be personally liable for obligations of the Issuer.
The interests represented by the Certificates shall be nonassessable for any
losses or expenses of the Issuer or for any reason whatsoever, and, upon the
authentication thereof by the Owner Trustee pursuant to Section 3.03, 3.04, 3.05
or 3.06, the Certificates are and shall be deemed fully paid.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice-President
NORDSTROM CREDIT CARD RECEIVABLES LLC,
as Transferor
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
29
EXHIBIT A
FORM OF OWNERSHIP INTEREST CERTIFICATE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (OR ANY
INTEREST HEREIN) MAY NOT BE TRANSFERRED TO ANY PERSON EXCEPT IN ACCORDANCE WITH
THE TRUST AGREEMENT.
NORDSTROM CREDIT CARD MASTER NOTE TRUST
OWNER CERTIFICATE
R-1
(This Certificate does not represent an interest in or obligation of Nordstrom
Credit Card Receivables LLC or any of its affiliates, except to the extent
described below.)
This certifies that Nordstrom Credit Card Receivables LLC is the
registered Owner of the Nordstrom Credit Card Master Note Trust (the "Trust").
The Trust was created pursuant to (i) the filing of the Certificate of Trust
with the Secretary of State of the State of Delaware and (ii) the Trust
Agreement, dated as of March 25, 2002, as amended and restated as of April 1,
2002 (the "Trust Agreement"), between Nordstrom Credit Card Receivables LLC (the
"Transferor") and Wilmington Trust Company, as trustee (the "Owner Trustee").
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Trust Agreement.
This Certificate is the duly authorized Certificate evidencing a
beneficial ownership interest in the Trust (the "Certificate"). This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Trust Agreement, including the rights of the holder of the Transferor
Certificate to which Trust Agreement the holder by virtue of the acceptance
hereof assents and by which the holder is bound.
Notwithstanding any prior termination of the Trust Agreement, the
holder, by its acceptance of this Certificate, covenants and agrees that it
shall not at any time with respect to the Trust, acquiesce, petition or
otherwise invoke or cause the Trust to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Trust under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Trust.
Unless the certificate of authentication hereon shall have been
executed by the Owner Trustee, by manual signature, this Certificate shall not
entitle the holder hereof to any benefit under the Trust Agreement, the Transfer
and Servicing Agreement or the Indenture or be valid for any purpose.
A-1
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE HOLDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
NORDSTROM CREDIT CARD MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: ____________ __, 2002 By: _________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: _________________________________
Authorized Signatory
A-2
Annex 1
to Exhibit A
Registered Owner and address:
Nordstrom Credit Card Receivables LLC
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Tax Identification Number: __________
A-3
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS.
THIS TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE TRUST AGREEMENT REFERRED TO HEREIN.
Xx. X-0 Xxx Xxxx
XXXXXXXXX CREDIT CARD MASTER NOTE TRUST
TRANSFEROR CERTIFICATE
Evidencing an interest in a trust, the corpus of which consists primarily of
receivables generated from time to time in the ordinary course of business in a
portfolio of revolving credit card accounts transferred by Nordstrom Credit Card
Receivables LLC (the "Transferor").
(Not an interest in or obligation of the Transferor
or any affiliate thereof)
This certifies that Nordstrom Credit Card Receivables LLC is the
registered owner of an undivided beneficial interest in the assets of the
Nordstrom Credit Card Master Note Trust (the "Trust"), subject to the lien of
the Notes as provided in the Master Indenture, dated April 1, 2002 (the "Master
Indenture"), between Xxxxx Fargo Bank Minnesota, National Association, as
trustee (the "Indenture Trustee"), as supplemented by the Series 0000-0
Xxxxxxxxx Supplement, dated as of April 1, 2002 (the "Series 2002-1 Indenture
Supplement," and together with the Master Indenture, the "Indenture"), between
the Indenture Trustee and the Trust, as the same may be amended, modified or
otherwise supplemented from time to time, and the Trust, established pursuant to
the Amended and Restated Trust Agreement, dated as of April 1, 2002, as amended
and supplemented (the "Trust Agreement"), between the Transferor and Wilmington
Trust Company, as trustee (the "Owner Trustee"). The corpus of the Trust
consists of (a) a portfolio of certain receivables (the "Receivables") existing
in the revolving credit card accounts identified under the Transfer and
Servicing Agreement, dated as of April 1, 2002, as amended from time to time
(the "Transfer and Servicing Agreement"), among the Transferor, Nordstrom fsb,
as servicer (the "Servicer"), the Indenture Trustee and the Trust, as issuer,
from time to time (the "Accounts"), (b) certain funds collected or to be
collected from accountholders in respect of the Receivables, (c) all funds which
are from time to time on deposit in the Collection Account, Special Funding
Account and in the Series Accounts, (d) the benefits of any Series Enhancements
issued and to be issued by Series Enhancers with respect to one or more Series
of
B-1
Notes and (e) all other assets and interests constituting the Trust,
including Interchange and Recoveries allocated to the Trust pursuant to the
Transfer and Servicing Agreement. Although a summary of certain provisions of
the Transfer and Servicing Agreement, the Trust Agreement and the Indenture
(collectively, the "Agreements") is set forth below, this Certificate does not
purport to summarize the Agreements and reference is made to the Agreements for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Owner Trustee. Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Agreements.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreements, to which Agreements, as amended and
supplemented from time to time, the Transferor by virtue of the acceptance
hereof assents and is bound.
The Receivables consist of Principal Receivables which arise generally
from the purchase of merchandise and services and amounts advanced to
cardholders as cash advances and Finance Charge Receivables which arise
generally from Periodic Rate Finance Charges, Late Fees and other fees and
charges with respect to the Accounts.
This Certificate (this "Certificate") is the Transferor Certificate,
which represents the undivided beneficial interest in certain assets of the
Trust, subject to the lien of the Notes, including the right to receive a
portion of the Collections and other amounts at the times and in the amounts
specified in the Indenture. In addition to the Transferor Certificate, (a) Notes
will be issued to investors pursuant to the Indenture and (b) Supplemental
Certificates may be issued pursuant to the Trust Agreement.
Unless otherwise specified in an Indenture Supplement with respect to a
particular Series, the Transferor has entered into the Transfer and Servicing
Agreement, and this Certificate is issued, with the intention that, for federal,
state and local income and franchise tax purposes, (a) the Notes of each Series
which are characterized as indebtedness at the time of their issuance will
qualify as indebtedness of the Transferor secured by the Receivables and (b) the
Trust shall not be treated as an association (or a publicly traded partnership)
taxable as a corporation. The Transferor by the acceptance of this Certificate,
agrees to treat the Notes for federal, state and local income and franchise tax
purposes as indebtedness of the Transferor.
Subject to certain conditions and exceptions specified in the
Agreements, the obligations created by the Agreements and the Trust created
thereby shall terminate upon the earlier of (a) at the option of the Transferor,
the day on which the rights of all Series of Notes to receive payments from the
Trust have terminated (the "Trust Termination Date") or (b) dissolution of the
Trust in accordance with applicable law.
B-2
Unless the certificate of authentication hereon has been executed by or
on behalf of the Owner Trustee, by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
NORDSTROM CREDIT CARD MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as OwnerTrustee
By: ____________________________________
Name:
Title:
Dated: _________ __, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate described in the Trust Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: ___________________________________
Authorized Signatory
B-3
Annex 1 to
Exhibit B
Registered Owner and address:
Nordstrom Credit Card Receivables LLC
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Tax Identification Number: __________
B-I-1
EXHIBIT C
FORM OF CERTIFICATE OF TRUST
NORDSTROM CREDIT CARD MASTER NOTE TRUST
This Certificate of Trust of Nordstrom Credit Card Master Note Trust
(the "Trust") is being duly executed and filed by the undersigned, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del.
C. Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust created hereby is Nordstrom
Credit Card Master Note Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust having its principal place of business in the State of Delaware are
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon
its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
WILMINGTON TRUST COMPANY,
as trustee
By: ___________________________________
Name:
Title:
C-1
