Exhibit 4.4
AMENDED AND RESTATED TRUST AGREEMENT
between
WFN CREDIT COMPANY, LLC,
as Transferor,
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION
as Owner Trustee
Dated as of August 1, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..............................................................1
Section 1.1. Capitalized Terms...............................................1
Section 1.2. Other Definitional Provisions...................................1
ARTICLE II ORGANIZATION.............................................................2
Section 2.1. Name............................................................2
Section 2.2. Office..........................................................2
Section 2.3. Purpose and Powers..............................................2
Section 2.4. Appointment of Owner Trustee....................................3
Section 2.5. Capital Contribution of Trust Estate............................3
Section 2.6. Declaration of Trust............................................3
Section 2.7. Title to Trust Property.........................................4
Section 2.8. Situs of Trust..................................................4
Section 2.9. Representations and Warranties of Transferor....................4
Section 2.10. Liability of Beneficiaries......................................5
ARTICLE III BENEFICIAL INTERESTS.....................................................5
Section 3.1. Initial Ownership...............................................5
Section 3.2. Transferor Interest.............................................5
Section 3.3. Form of Transferor Interest.....................................6
Section 3.4. Restrictions on Transfer; Issuance of Supplemental Interests....6
ARTICLE IV ACTIONS BY OWNER TRUSTEE.................................................7
Section 4.1. Prior Notice to Transferor with Respect to Certain Matters......7
Section 4.2. Restrictions on Power...........................................7
ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE....................................8
Section 5.1. General Authority...............................................8
Section 5.2. General Duties..................................................8
Section 5.3. Action Upon Instruction.........................................8
Section 5.4. No Duties Except as Specified in this
Agreement or in Instructions....................................9
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Section 5.5. No Action Except under Transaction
Documents or Instructions......................................10
Section 5.6. Restrictions...................................................10
Section 5.7. Tax Returns....................................................10
ARTICLE VI CONCERNING OWNER TRUSTEE................................................10
Section 6.1. Acceptance of Trusts and Duties................................10
Section 6.2. Furnishing of Documents........................................12
Section 6.3. Representations and Warranties.................................12
Section 6.4. Reliance; Advice of Counsel....................................13
Section 6.5. Not Acting in Individual Capacity..............................13
Section 6.6. Owner Trustee Not Liable for Notes or Receivables..............14
Section 6.7. Owner Trustee Not to Own Notes.................................14
ARTICLE VII COMPENSATION OF OWNER TRUSTEE...........................................14
Section 7.1. Owner Trustee's Fees and Expenses..............................14
Section 7.2. Indemnification................................................15
Section 7.3. Payments to Owner Trustee......................................15
ARTICLE VIII TERMINATION OF TRUST AGREEMENT..........................................15
Section 8.1. Termination of Trust Agreement.................................15
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES..................16
Section 9.1. Eligibility Requirements for Owner Trustee.....................16
Section 9.2. Resignation or Removal of Owner Trustee........................16
Section 9.3. Successor Owner Trustee........................................17
Section 9.4. Merger or Consolidation of Owner Trustee.......................18
Section 9.5. Appointment of Co-Trustee or Separate Trustee..................18
ARTICLE X MISCELLANEOUS...........................................................19
Section 10.1. Supplements and Amendments.....................................19
Section 10.2. No Legal Title to Trust Estate in Transferor...................21
Section 10.3. Limitations on Rights of Others................................21
Section 10.4. Notices........................................................22
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Section 10.5. Severability...................................................22
Section 10.6. Separate Counterparts..........................................22
Section 10.7. Successors and Assigns.........................................22
Section 10.8. Non-petition Covenants.........................................22
Section 10.9. No Recourse....................................................23
Section 10.10. Headings.......................................................23
Section 10.11. GOVERNING LAW..................................................23
Section 10.12. Integration of Documents.......................................23
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AMENDED AND RESTATED
TRUST AGREEMENT, dated as of August 1, 2001 (this
"AGREEMENT"), between WFN CREDIT COMPANY, LLC, a
Delaware limited liability
company, as Transferor, and CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, a
national banking association, as Owner Trustee.
WHEREAS, Transferor and Owner Trustee have entered into that certain
Trust Agreement dated as of July 27, 2001 (the "Original
Trust Agreement"); and
WHEREAS, pursuant to SECTION 4 of the Original
Trust Agreement, the
Transferor and the Owner Trustee desire to amend and restate the Original
Trust
Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Original
Trust Agreement is hereby amended and restated in its
entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1. CAPITALIZED TERMS. Capitalized terms used herein and
not otherwise defined herein are defined in ANNEX A to the Master Indenture,
dated as of the date hereof, between World Financial Network Credit Card
Master Note Trust and BNY Midwest Trust Company.
Section 1.2. OTHER DEFINITIONAL PROVISIONS. All terms defined
directly or by reference in this Agreement shall have the defined meanings
when used in any certificate or other document delivered pursuant hereto
unless otherwise defined therein. For purposes of this Agreement and all such
certificates and other documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in this Agreement, and accounting
terms partly defined in this Agreement to the extent not defined, shall have
the respective meanings given to them under GAAP; (b) terms defined in
Article 9 of the UCC as in effect in the State of
Delaware and not otherwise
defined in this Agreement are used as defined in that Article; (c) any
reference to each Rating Agency shall only apply to any specific rating
agency if such rating agency is then rating any outstanding Series; (d)
references to any amount as on deposit or outstanding on any particular date
means such amount at the close of business on such day; (e) the words
"hereof," "herein" and "hereunder" and words of similar import refer to this
Agreement (or the certificate or other document in which they are used) as a
whole and not to any particular provision of this Agreement (or such
certificate or document); (f) references to any Section, Schedule or Exhibit
are references to Sections, Schedules and Exhibits in or to this Agreement
(or the certificate or other document in which the reference is made), and
references to any paragraph, Section, clause or other subdivision within any
Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition;
(g) the term "including" means "including without limitation"; (h) references to
any law or regulation refer to that law or regulation as amended from time to
time and include any successor law or regulation; (i) references to any Person
include that Person's successors and assigns; and (j) headings are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
ARTICLE II
ORGANIZATION
Section 2.1. NAME. The trust created hereby shall be known as "World
Financial Network Credit Card Master Note Trust," in which name the Trust and
Owner Trustee on behalf of the Trust each shall have power and authority and
is hereby authorized and empowered to and may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the
Trust and xxx and be sued.
Section 2.2. OFFICE. The office of the Trust shall be in care of
Owner Trustee at the Corporate Trust Office or at such other address in the
United States as Owner Trustee may designate by written notice to Transferor
and Indenture Trustee.
Section 2.3. PURPOSE AND POWERS. The purpose of the Trust is to
engage in the activities set forth in this SECTION 2.3. The Trust shall have
power and authority and is hereby authorized and empowered, without the need
for further action on the part of the Trust, and Owner Trustee shall have
power and authority, and is hereby authorized and empowered, in the name and
on behalf of the Trust, to do or cause to be done all acts and things
necessary, appropriate or convenient to cause the Trust, to engage in the
activities set forth in this SECTION 2.3 as follows:
(i) to execute, deliver and issue the Notes pursuant to
the Indenture, to issue the Transferor Interest and to issue the
Supplemental Interests, if any, pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes, to
acquire the Trust Estate and to pay Transferor the amounts owed
pursuant to SECTION 2.1 of the Transfer and Servicing Agreement;
(iii) to assign, grant, pledge and mortgage the Collateral
pursuant to the Indenture and to hold, manage and distribute to the
Holder of the Transferor Interest pursuant to the terms of this
Agreement and the Transaction Documents any portion of the Collateral
released from the lien of, and remitted to the Trust pursuant to, the
Indenture;
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(iv) to enter into, execute, deliver and perform the
Transaction Documents to which it is to be a party;
(v) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Transaction Documents,
to engage in such other activities as may be required in connection
with conservation of the Trust Estate and the making of payments to the
Noteholders and distributions to the Holder of the Transferor Interest.
The Trust shall not have power, authority or authorization to, and shall not,
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the Transaction Documents. The Trust shall have no
power to hold any derivative financial instrument unless such derivative
financial instrument complies with the requirements of paragraph 40 of Statement
of Financial Accounting Standards No. 140 issued by the Financial Accounting
Standards Board, including any interpretations thereof or any successor
regulations issued by the Financial Accounting Standards Board.
Section 2.4. APPOINTMENT OF OWNER TRUSTEE. Transferor hereby appoints
Owner Trustee as trustee of the Trust effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
Section 2.5. CAPITAL CONTRIBUTION OF TRUST ESTATE. Pursuant to the
Transfer and Servicing Agreement, Transferor shall assign, transfer, convey and
set over to the Trust, as of the Initial Closing Date, the assets specified in
the Transfer and Servicing Agreement. Owner Trustee hereby acknowledges receipt
in trust from Transferor, as of the date hereof, of the foregoing contribution,
which shall constitute part of the Trust Estate and shall be held by Owner
Trustee on behalf of the Trust. Transferor shall pay organizational expenses of
the Trust as they may arise or shall, upon the request of Owner Trustee,
promptly reimburse Owner Trustee for any such expenses paid by Owner Trustee.
Section 2.6. DECLARATION OF TRUST. Owner Trustee hereby declares that
it will hold the Trust Estate in trust upon and subject to the conditions set
forth herein for the use and benefit of Transferor, subject to the obligations
of the Trust under the Transaction Documents to which it is a party. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such trust. It is the intention of the parties hereto that, for
income tax purposes, the Trust shall be treated as a security device and not as
an entity separate from Transferor and its assets shall be treated as owned in
whole by Transferor. The parties hereto agree that they will take no action
contrary to the foregoing intention. Effective as of the date hereof, Owner
Trustee shall have all rights, powers and authority set forth herein and, to the
extent not inconsistent herewith, in the Business Trust
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Statute with respect to accomplishing the purposes of the Trust. The Owner
Trustee has filed or caused to be filed the Certificate of Trust in the form of
EXHIBIT A to the Original
Trust Agreement.
Section 2.7. TITLE TO TRUST PROPERTY. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.8. SITUS OF TRUST. The Trust will be located and administered
in the State of
Delaware. All bank accounts maintained by, or on behalf of, the
Trust shall be located in the State of
Delaware or the State of New York. The
Trust shall not have any employees in any state other than
Delaware; PROVIDED,
HOWEVER, that nothing herein shall restrict or prohibit Owner Trustee from
having employees within or without the State of
Delaware. Payments will be
received by the Trust only in
Delaware or New York, and payments will be made by
the Trust only from
Delaware or New York. The only office of the Trust will be
at the Corporate Trust Office.
Section 2.9. REPRESENTATIONS AND WARRANTIES OF TRANSFEROR. Transferor
hereby represents and warrants to Owner Trustee (as such or in its individual
capacity) that:
(a) Transferor is a limited liability company duly organized and
validly existing in good standing under the laws of the State of
Delaware and
has full corporate power and authority to own its properties and to conduct its
business as such properties are presently owned and such business is presently
conducted, and to execute, deliver and perform its obligations under the
Transaction Documents to which it is a party and to perform its obligations as
contemplated thereby.
(b) Transferor is duly qualified to do business and is in good
standing (or is exempt from such requirement) in any State required in order to
conduct its business, and has obtained all necessary licenses and approvals with
respect to Transferor, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would have a material adverse effect on its
ability to perform its obligations under the Transaction Documents to which it
is a party.
(c) The execution and delivery of the Transaction Documents to
which Transferor is a party and the consummation of the transactions provided
for in the Transaction Documents to which Transferor is a party have been duly
authorized by Transferor by all necessary limited liability company action on
its part. Transferor has the power and authority to assign the property to be
assigned to and deposited with the Trust pursuant to Section 2.5 of this
Agreement and Section 2.1 of the Transfer and Servicing Agreement.
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(d) The execution and delivery of the Transaction Documents to
which Transferor is a party, the performance of the transactions contemplated by
the Transaction Documents to which Transferor is a party and the fulfillment of
the terms hereof and thereof will not conflict with or violate any Requirements
of Law applicable to Transferor, or conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which Transferor is a
party or by which it or any of its properties are bound (other than violations
of such indentures, contracts, agreements, mortgages, deeds of trust or other
instruments which, individually or in the aggregate, would not have a material
adverse effect on Transferor's ability to perform its obligations under this
Agreement).
(e) There are no proceedings or investigations pending or, to the
best knowledge of Transferor, threatened, against Transferor before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over Transferor (i) asserting the invalidity
of any of the Transaction Documents to which Transferor is a party, (ii) seeking
to prevent the consummation of any of the transactions contemplated by any of
the Transaction Documents to which Transferor is a party, (iii) seeking any
determination or ruling that, in the reasonable judgment of Transferor, would
materially and adversely affect the performance by Transferor of its obligations
under the Transaction Documents to which Transferor is a party, or (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of the Transaction Documents to which Transferor is a
party.
(f) This Agreement is legal, valid and enforceable against
Transferor.
Section 2.10. LIABILITY OF BENEFICIARIES. The Holders of the Transferor
Interest, including the Holders of Supplemental Interests, if any, shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of
Delaware.
ARTICLE III
BENEFICIAL INTERESTS
Section 3.1. INITIAL OWNERSHIP. Transferor, as the Holder of the
Transferor Interest (i) shall initially be the only beneficial owner of the
Trust and (ii) shall be bound by the provisions of this Trust Agreement.
Section 3.2. TRANSFEROR INTEREST. The Transferor Interest shall
represent an undivided beneficial interest in the Trust Estate subject to the
lien of the Notes created pursuant to the Indenture, including the right to
receive Collections with respect to the Receivables and other amounts at the
times and in the amounts
5
specified in the Indenture and any Indenture Supplement to be paid to the Holder
of the Transferor Interest.
Section 3.3. FORM OF TRANSFEROR INTEREST. The Transferor Interest
initially shall be an uncertificated interest in the Trust.
Section 3.4. RESTRICTIONS ON TRANSFER; ISSUANCE OF SUPPLEMENTAL
INTERESTS. (a) Transferor may from time to time transfer a portion of the
Transferor Interest by causing the issuance of one or more additional interests
(each a "SUPPLEMENTAL INTEREST"), which shall be in uncertificated form. The
form and terms of any Supplemental Interest shall be defined in a supplement to
this Agreement (which supplement shall be subject to SECTION 10.1 to the extent
that it amends any of the terms of this Agreement) to be delivered to or upon
the order of Transferor (or the holder of a Supplemental Interest, in the case
of the transfer or exchange thereof, as provided below). The issuance of any
such Supplemental Interest to any Person shall be subject to satisfaction of the
following conditions:
(i) the Rating Agency Condition shall have been satisfied
with respect to such action; and
(ii) Transferor shall have delivered to Owner Trustee,
Indenture Trustee and each Rating Agency a Tax Opinion, dated the date
of such action (or transfer, exchange or other disposition provided
below), with respect to such action and an Opinion of Counsel to the
effect that such action, assignment, participation, pledge or other
disposition does not require registration of the interest under the
Securities Act or any state securities law except for any such
registration that has been duly completed and become effective.
A Supplemental Interest may be transferred or exchanged, and the Transferor
Interest may be pledged, only upon satisfaction of the conditions set forth in
CLAUSE (ii).
(b) The Transferor Interest may be transferred in its entirety
to a Person which is a member of the "affiliated group" as defined in Section
1504(a) of the Code of which Transferor is a member without the consent or
approval of the Noteholders, provided that (i) the Rating Agency Condition
shall have been satisfied with respect to such transfer, (ii) Transferor
shall have delivered to Owner Trustee, Indenture Trustee and each Rating
Agency a Tax Opinion and an Opinion of Counsel of the type described in
SECTION 3.4(a)(ii), dated the date of such transfer, with respect thereto and
(iii) Transferor shall have delivered to Indenture Trustee an Officer's
Certificate stating that Transferor Amount shall not be less than the Minimum
Transferor Amount. In connection with any such transfer, the Person to whom
the Transferor Interest is transferred will, by its acquisition and holding
of an interest in the Transferor Interest, assume all of the rights and
obligations of Transferor as described in this Agreement, each Transaction
Document and in any supplement or amendment thereto (including
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the right under this PARAGRAPH (b) with respect to subsequent transfers of an
interest in the Transferor Interest).
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.1. PRIOR NOTICE TO TRANSFEROR WITH RESPECT TO CERTAIN
MATTERS. With respect to the following matters, unless otherwise instructed by
Transferor, the Trust shall not take action unless at least thirty (30) days
before the taking of such action Owner Trustee shall have notified Transferor:
(a) the initiation of any claim or lawsuit by the Trust (other
than an action to collect on the Trust Estate) and the settlement of any action,
claim or lawsuit brought by or against the Trust (other than an action to
collect on the Trust Estate);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of Transferor;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner that would not materially adversely affect the interests of
Transferor; or
(f) the appointment pursuant to the Indenture of a replacement or
successor Transfer Agent and Registrar or Indenture Trustee, or the consent to
the assignment by the Transfer Agent and Registrar, Administrator or Indenture
Trustee of its obligations under the Indenture.
Section 4.2. RESTRICTIONS ON POWER.
(a) Owner Trustee shall not be required to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or Owner Trustee (as such or in its individual capacity) under any
of the Transaction Documents or would be contrary to SECTION 2.3.
(b) Owner Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated by the Transaction Documents.
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.1. GENERAL AUTHORITY. Each of the Trust and Owner Trustee in
the name and on behalf of the Trust shall have power and authority, and is
hereby authorized and empowered, to execute and deliver the Transaction
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Transaction Documents
to which the Trust is to be a party, or any amendment thereto or other
agreement, in each case, in such form as Transferor shall approve as evidenced
conclusively by Owner Trustee's execution thereof and Transferor's execution of
the related documents. In addition to the foregoing, Owner Trustee in the name
and on behalf of the Trust shall also have power and authority and is hereby
authorized and empowered, but shall not be obligated, to take all actions
required of the Trust pursuant to the Transaction Documents. Owner Trustee in
the name and on behalf of the Trust shall also have power and authority and is
hereby authorized and empowered from time to time to take such action as
Transferor or Administrator directs in writing with respect to the Transaction
Documents.
Section 5.2. GENERAL DUTIES. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which the
Trust is a party and to administer the Trust in the interest of Transferor,
subject to the Transaction Documents and in accordance with the provisions of
this Agreement. Notwithstanding the foregoing, Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent Administrator has agreed in the
Administration Agreement or another Transaction Document to perform any act or
to discharge any duty of Owner Trustee or the Trust under any Transaction
Document, and Owner Trustee shall not be personally liable for the default or
failure of Administrator to carry out its obligations under the Administration
Agreement.
Section 5.3. ACTION UPON INSTRUCTION.
(a) Owner Trustee shall not be required to take any action
hereunder or under any other Transaction Document if Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in personal liability on the part of Owner Trustee or is
contrary to the terms of any Transaction Document or is otherwise contrary to
law.
(b) Whenever Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of any Transaction
Document, Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to Transferor requesting instruction as to
the course of action to be adopted, and to the extent Owner Trustee acts or
refrains
8
from acting in good faith in accordance with any such instruction of Transferor
received, Owner Trustee shall not be personally liable on account of such action
or inaction to any Person. If Owner Trustee shall not have received appropriate
instruction within ten (10) days of such notice (or within such shorter period
of time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not in violation of the Transaction Documents, as it shall
deem to be in the best interest of Transferor, and shall have no personal
liability to any Person for such action or inaction.
(c) In the event that Owner Trustee is unsure as to the
application of any provision of any Transaction Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits any
determination by Owner Trustee or is silent or is incomplete as to the course of
action that Owner Trustee is required to take with respect to a particular set
of facts, Owner Trustee may give notice (in such form as shall be appropriate
under the circumstances) to Transferor requesting instruction and, to the extent
that Owner Trustee acts or refrains from acting in good faith in accordance with
any such instruction received, Owner Trustee shall not be personally liable, on
account of such action or inaction, to any Person. If Owner Trustee shall not
have received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not in violation of the Transaction
Documents, as it shall deem to be in the best interests of Transferor, and shall
have no personal liability to any Person for such action or inaction.
(d) The Administrator and the Transferor may, by written
instruction, direct the Owner Trustee in the administration of the Trust to the
extent permitted by this Agreement and the Administration Agreement.
Section 5.4. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust or the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by Owner Trustee pursuant to SECTION 5.3; and no implied
duties or obligations shall be read into any Transaction Document against Owner
Trustee. Owner Trustee shall have no responsibility for any filing or recording,
including filing any financing or continuation statement in any public office at
any time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it or the Trust hereunder or to prepare or file any
Commission filing for the Trust, or to prepare any tax forms, returns or reports
or to record any Transaction
9
Document. Owner Trustee in its individual capacity nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be necessary
to discharge any liens on any part of the Trust Estate that result from actions
by, or claims against, Owner Trustee in its individual capacity that are not
related to the ownership or the administration of the Trust Estate or the
transactions contemplated by the Transaction Documents.
Section 5.5. NO ACTION EXCEPT UNDER TRANSACTION DOCUMENTS OR
INSTRUCTIONS. Owner Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Estate except (i) in accordance with
the powers granted to and the authority conferred upon Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Transaction Documents and (iii) in
accordance with any document or instruction delivered to Owner Trustee pursuant
to SECTION 5.3.
Section 5.6. RESTRICTIONS. Owner Trustee shall not take any action (a)
that, to the actual knowledge of a Responsible Officer of Owner Trustee, would
violate the purposes of the Trust set forth in SECTION 2.3 or (b) that, to the
actual knowledge of a Responsible Officer of Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal income tax purposes.
Transferor shall not direct Owner Trustee to take action that would violate the
provisions of this SECTION 5.6.
Section 5.7. TAX RETURNS. In the event the Trust shall be required to
file tax returns, Administrator shall prepare or shall cause to be prepared such
tax returns and shall provide such tax returns to Owner Trustee for signature at
least five (5) days before such tax returns are due to be filed. Administrator,
in accordance with the terms of each Indenture Supplement, shall also prepare or
shall cause to be prepared all tax information required by law to be distributed
to Noteholders and shall deliver such information to Owner Trustee at least five
(5) days prior to the date it is required by law to be distributed to
Noteholders. Owner Trustee, upon request, will furnish Administrator with all
such information known to Owner Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust, and shall, upon
request, execute such returns. In no event shall Owner Trustee or Indenture
Trustee be liable for any liabilities, costs or expenses of the Trust or any
Noteholder arising under any tax law, including federal, state or local income
or excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto arising from a failure to comply
therewith).
ARTICLE VI
CONCERNING OWNER TRUSTEE
Section 6.1. ACCEPTANCE OF TRUSTS AND DUTIES. Owner Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts, but only upon the terms of this Agreement. Owner Trustee also
agrees
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to disburse all moneys actually received by it constituting part of the Trust
Estate upon the terms of the Transaction Documents. Owner Trustee shall not be
personally answerable or accountable under any Transaction Document under any
circumstances, except (i) for its own willful misconduct, bad faith or gross
negligence in the performance of its duties or the omission to perform any such
duties or (ii) in the case of the inaccuracy of any representation or warranty
contained in SECTION 6.3 expressly made by Owner Trustee in its individual
capacity. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) Owner Trustee shall not be personally liable for any error of
judgment made in good faith by Owner Trustee;
(b) Owner Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in accordance with the
instructions of Administrator or Transferor;
(c) no provision of this Agreement or any other Transaction
Document shall require Owner Trustee to expend or risk funds or otherwise incur
any personal financial liability in the exercise or performance of any of its
duties, rights or powers hereunder or under any other Transaction Document, if
Owner Trustee shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to it (as such and in its individual capacity);
(d) under no circumstances shall Owner Trustee be personally
liable for indebtedness evidenced by or arising under any of the Transaction
Documents, including the principal of and interest on the Notes;
(e) Owner Trustee shall not be personally responsible for or in
respect of the validity or sufficiency of this Agreement, the due execution
hereof by Transferor or the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate, the Transaction Documents, the Notes or the
Transferor Interest, and Owner Trustee shall in no event assume or incur any
personal liability, duty, or obligation to any Noteholder, Transferor, any
Holder of the Transferor Interest or any other Person, other than as expressly
provided for herein or expressly agreed to in the other Transaction Documents;
(f) Owner Trustee shall not be personally liable for the default
or misconduct of, and shall have no duty to monitor the performance of,
Transferor, Servicer, Administrator or Indenture Trustee or any other Person
under any of the Transaction Documents or otherwise, and Owner Trustee shall
have no obligation or personal liability to perform the obligations of the Trust
under the Transaction Documents, including those that are required to be
performed by Administrator under the Administration Agreement, Indenture Trustee
under the Indenture or Servicer under the Transfer and Servicing Agreement;
11
(g) Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to any
Transaction Document, at the request, order or direction of Transferor, unless
the Transferor has offered to Owner Trustee (as such and in its individual
capacity) security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred by Owner Trustee therein or thereby. The
right of Owner Trustee to perform any discretionary act enumerated in any
Transaction Document shall not be construed as a duty, and Owner Trustee shall
not be answerable or personally liable to any Person for any such act other than
liability to the Trust and the beneficial owners of the Trust for its own gross
negligence, bad faith or willful misconduct in the performance of any such act
or the omission to perform any such act; and
(h) Notwithstanding anything contained herein to the contrary,
Owner Trustee shall not be required to take any action in any jurisdiction other
than in the State of Delaware if the taking of such action will (i) require the
registration with, licensing by or the taking of any other similar action in
respect of, any State or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to Owner
Trustee (as such or in its individual capacity); (ii) result in any fee, tax or
other governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State of
Delaware becoming payable by Owner Trustee (as such or in its individual
capacity); or (iii) subject Owner Trustee (as such or in its individual
capacity) to personal jurisdiction in any jurisdiction other than the State of
Delaware for causes of action arising from acts unrelated to the consummation of
the transactions by Owner Trustee contemplated hereby. Owner Trustee shall be
entitled to obtain advice of counsel (which advice shall be an expense of
Transferor) to determine whether any action required to be taken pursuant to the
Agreement results in the consequences described in clauses (i), (ii) and (iii)
of the preceding sentence. In the event that said counsel advises Owner Trustee
that such action will result in such consequences, Transferor shall appoint an
additional trustee pursuant to SECTION 9.5 to proceed with such action.
Section 6.2. FURNISHING OF DOCUMENTS. Owner Trustee shall furnish to
Transferor and Indenture Trustee, promptly upon written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to Owner Trustee under
the Transaction Documents.
Section 6.3. REPRESENTATIONS AND WARRANTIES. Owner Trustee (as such and
in its individual capacity) hereby represents and warrants to Transferor that:
(a) It is a national banking association duly organized and
validly existing in good standing under the federal laws of the United States.
It has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
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(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of Owner Trustee (as such and in its individual
capacity) or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its properties
may be bound.
Section 6.4. RELIANCE; ADVICE OF COUNSEL.
(a) Owner Trustee shall incur no personal liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper reasonably
believed by it to be genuine and reasonably believed by it to be signed by the
proper party or parties. Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any Person as
conclusive evidence that such resolution has been duly adopted by such body and
that the same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein, Owner
Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other authorized officer
of an appropriate Person, as to such fact or matter, and such certificate shall
constitute full protection to Owner Trustee for any action taken or omitted to
be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement or the
other Transaction Documents, Owner Trustee (i) may act directly or through
agents or attorneys pursuant to agreements entered into with any of them, and
Owner Trustee shall not be personally liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
Owner Trustee in good faith, and (ii) may consult with counsel, accountants and
other skilled Persons to be selected in good faith and employed by it. Owner
Trustee shall not be personally liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or written advice of any
such counsel, accountants or other such Persons.
Section 6.5. NOT ACTING IN INDIVIDUAL CAPACITY. Except as expressly
provided in this ARTICLE VI, in accepting the trusts hereby created, Chase
Manhattan Bank USA, National Association acts solely as Owner Trustee hereunder
and not in its individual capacity, and all Persons having any claim against
Owner Trustee by reason of the transactions contemplated by any
13
Transaction Document shall look only to the Trust Estate for payment or
satisfaction thereof.
Section 6.6. OWNER TRUSTEE NOT LIABLE FOR NOTES OR RECEIVABLES. The
statements contained herein and in the Notes and other Transaction Documents
(other than the representations and warranties in SECTION 6.3) shall be taken as
the statements of Transferor, and Owner Trustee assumes no responsibility for
the correctness thereof. Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement or any other Transaction Document, the
Notes or related documents. Owner Trustee shall at no time have any
responsibility or personal liability for or with respect to the legality,
validity and enforceability of the Receivables or the perfection and priority of
any security interest in the Receivables or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Estate or its ability to generate the payments to be distributed to the
Noteholders under the Indenture, including the existence, condition and
ownership of the Receivables; the existence and contents of the Receivables on
any computer or other record thereof; the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the completeness of
the Receivables; the performance or enforcement of the Receivables; the
compliance by Transferor with any warranty or representation made under any
Transaction Document or in any related document or the accuracy of any such
warranty or representation or any action of Administrator, Servicer or Indenture
Trustee taken in the name of Owner Trustee.
Section 6.7. OWNER TRUSTEE MAY OWN NOTES. Owner Trustee may become the
owner or pledgee of Notes. If Owner Trustee becomes the owner or pledgee of
Notes it shall have the same rights as it would have if it were not Owner
Trustee. Owner Trustee may deal with Transferor, Administrator, Servicer and
Indenture Trustee in banking transactions with the same rights as it would have
if it were not Owner Trustee.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.1. OWNER TRUSTEE'S FEES AND EXPENSES. Owner Trustee (in its
individual capacity) shall receive as compensation for its services hereunder
such fees as have been separately agreed upon before the date hereof between
Transferor and Owner Trustee (in its individual capacity) (which compensation
shall not be limited by any law on compensation of a trustee of an express
trust), and Owner Trustee (in its individual capacity) shall be entitled to be
reimbursed by Transferor for its other reasonable expenses hereunder, including
the reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as Owner Trustee may employ in connection
with the exercise and performance of its rights and its duties hereunder and
under the Transaction Documents; PROVIDED, HOWEVER, that Owner Trustee shall
have no recourse to the assets pledged under the Indenture with respect to any
payments
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pursuant to this SECTION 7.1 and Owner Trustee's right to enforce such
obligation shall be subject to the provisions of SECTION 10.8.
Section 7.2. INDEMNIFICATION. To the fullest extent permitted by
law, Transferor shall indemnify, defend and hold harmless Owner Trustee (as
such and in its individual capacity) and its successors, assigns, directors,
officers, agents, employees and servants (each an "INDEMNIFIED PARTY" and
collectively, the "INDEMNIFIED PARTIES") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "EXPENSES") which may at any time be imposed on, incurred by,
or asserted against Owner Trustee or any Indemnified Party in any way
relating to or arising out of the Transaction Documents, the Trust Estate,
the acceptance and administration of the Trust Estate or any action or
inaction of Owner Trustee; PROVIDED that Transferor shall not be liable for
or required to indemnify any Indemnified Party from and against Expenses
arising or resulting from any of the matters described in the third sentence
of SECTION 6.1 or Expenses for which indemnification is actually received
under other Transaction Documents; provided further that Transferor shall not
be liable for or required to indemnify an Indemnified Party from and against
expenses arising or resulting from (i) the Indemnified Party's own willful
misconduct, bad faith or gross negligence, or (ii) the inaccuracy of any
representation or warranty contained in SECTION 6.3. No Indemnified Party
shall have recourse to the assets pledged under the Indenture with respect to
any Expenses payable by Transferor pursuant to this SECTION 7.2. An
Indemnified Party's right to enforce such obligation shall be subject to the
provisions of SECTION 10.8. The indemnities contained in this SECTION 7.2
shall survive the resignation and termination of Owner Trustee or the
termination of this Agreement.
Section 7.3. PAYMENTS TO OWNER TRUSTEE. Any amounts paid to Owner
Trustee or any other Indemnified Party pursuant to this ARTICLE VII shall not be
construed to be a part of the Trust Estate.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.1. TERMINATION OF TRUST AGREEMENT.
(a) The Trust shall dissolve upon the date specified by Transferor
(the "TRUST TERMINATION DATE", written notice of which shall be provided to
Owner Trustee), PROVIDED that the Trust Termination Date shall not be earlier
than the day on which the rights of all Series of Notes to receive payments from
the Trust have terminated. After satisfaction of liabilities of the Trust as
provided by applicable law, any money or other property held as part of the
Trust Estate following such distribution shall be distributed to Transferor. The
bankruptcy, liquidation, dissolution, termination, death or incapacity of
Transferor shall not
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(x) operate to terminate this Agreement or annul, dissolve or terminate the
Trust, or (y) entitle Transferor's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust or Trust Estate or (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in SECTION 8.1(a), neither Transferor
nor any Holder of the Transferor Interest shall be entitled to revoke,
dissolve or terminate the Trust.
(c) Upon completion of the winding up of the Trust in accordance
with the Business Trust Statute, Owner Trustee shall cause the Certificate of
Trust to be canceled by filing a certificate of cancellation with the Secretary
of State of the State of Delaware in accordance with the provisions of Section
3810 of the Business Trust Statute and thereupon the Trust and this Agreement
(other than ARTICLES VI and VII and SECTION 10.8) shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.1. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. Owner Trustee
shall at all times be a Person satisfying the provisions of Section 3807(a) of
the Business Trust Statute; authorized to exercise trust powers; having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authorities; and having (or having a parent
which has) a rating of at least Baa3 by Xxxxx'x, at least BBB- by Standard &
Poor's and, if rated by Fitch, at least BBB- by Fitch, or otherwise satisfactory
to each Rating Agency. If such Person shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this SECTION 9.1,
the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time Owner Trustee shall cease to be eligible in
accordance with the provisions of this SECTION 9.1, Owner Trustee shall resign
immediately in the manner and with the effect specified in SECTION 9.2.
Section 9.2. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. Owner Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice thereof to Transferor; PROVIDED, HOWEVER, that such resignation
and discharge shall only be effective upon the appointment of a successor Owner
Trustee. Upon receiving such notice of resignation, Transferor shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the resigning Owner Trustee and one
copy to the successor Owner Trustee. If no successor Owner Trustee shall have
been so appointed and have accepted appointment within thirty (30) days after
the giving of such notice of resignation, the resigning Owner Trustee at the
expense
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of Transferor may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time Owner Trustee shall cease to be eligible in accordance
with the provisions of SECTION 9.1 and shall fail to resign after written
request therefor by Transferor, or if at any time Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
Owner Trustee or of its property shall be appointed, or any public officer shall
take charge or control of Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then Transferor may, but
shall not be required to, remove Owner Trustee. If Transferor shall remove Owner
Trustee under the authority of the immediately preceding sentence, Transferor
shall promptly (i) appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing Owner
Trustee so removed and one copy to the successor Owner Trustee and (ii) pay all
amounts owed to the outgoing Owner Trustee in its individual capacity.
Any resignation or removal of Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this SECTION 9.2
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to SECTION 9.3 and, in the case of removal, payment of
all fees and expenses owed to the outgoing Owner Trustee (as such or in its
individual capacity). Transferor shall provide notice of such resignation or
removal of Owner Trustee to each Rating Agency.
Section 9.3. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to SECTION 9.2 shall execute, acknowledge and deliver to
Transferor and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and Transferor and the predecessor Owner Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
SECTION 9.3 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to SECTION 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this SECTION 9.3, Transferor shall mail notice of such acceptance of appointment
including the name of such successor Owner Trustee to Transferor, Indenture
17
Trustee, the Noteholders and each Rating Agency. If Transferor shall fail to
mail such notice within ten (10) days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such notice to
be mailed at the expense of Transferor.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this SECTION 9.3, such successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State of the State of Delaware
identifying the name and principal place of business of such successor Owner
Trustee in the State of Delaware.
Section 9.4. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Notwithstanding
anything herein to the contrary, any Person into which Owner Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which Owner Trustee
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of Owner Trustee, shall be the successor of Owner
Trustee hereunder (PROVIDED that such Person shall meet the eligibility
requirements set forth in SECTION 9.1), without the execution or filing of any
instrument or any further act on the part of any of the parties hereto; PROVIDED
FURTHER that (a) Owner Trustee shall mail notice of such merger or consolidation
to each Rating Agency and (b) Owner Trustee shall file any necessary amendments
to the Certificate of Trust with the Secretary of State of the State of
Delaware.
Section 9.5. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, Transferor and Owner Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by each of Transferor and
Owner Trustee to act as co-trustee, jointly with Owner Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Estate, and to
vest in such Person, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this SECTION 9.5, such powers,
duties, obligations, rights and trusts as Transferor and Owner Trustee may
consider necessary or desirable. If Transferor shall not have joined in such
appointment within fifteen (15) days after the receipt by it of a request so to
do, Owner Trustee alone shall have the power to make such appointment. no
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to SECTION 9.1 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to SECTION 9.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred
or imposed upon Owner Trustee shall be conferred upon and exercised or
18
performed by Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without Owner Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties, and obligations (including the
holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) Transferor and Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this ARTICLE IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, Owner Trustee. Each
such instrument shall be filed with Owner Trustee and a copy thereof given to
Transferor.
Any separate trustee or co-trustee may at any time appoint Owner
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by Owner
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
ARTICLE X
MISCELLANEOUS
Section 10.1. SUPPLEMENTS AND AMENDMENTS. This Agreement may be amended
from time to time, by a written amendment duly executed and delivered by
Transferor and Owner Trustee, without the consent of any of the Noteholders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
to add any other provisions with respect to matters or questions raised under
19
this Agreement which shall not be inconsistent with the provisions of this
Agreement; PROVIDED, HOWEVER, that such amendment will not, as evidenced by an
Officer's Certificate of Transferor addressed and delivered to Owner Trustee and
Indenture Trustee, materially and adversely affect the interest of any
Noteholder. In addition, this Agreement may be amended from time to time, by a
written amendment duly executed and delivered by Transferor and Owner Trustee,
without the consent of any of the Noteholders, and upon satisfaction of the
Rating Agency Condition, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or
modifying in any manner the rights of the Noteholders; PROVIDED, HOWEVER, that
such amendment will not (i) as evidenced by an Officer's Certificate of
Transferor addressed and delivered to Owner Trustee and Indenture Trustee,
materially and adversely affect the interest of any Noteholder and (ii) as
evidenced by an Opinion of Counsel addressed and delivered to Owner Trustee and
Indenture Trustee, cause the Trust to be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes; PROVIDED, FURTHER, that SECTION 2.3 of this Agreement may be amended
only with the consent of the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes. Additionally, notwithstanding
the preceding sentence, this Agreement will be amended by Transferor and Owner
Trustee without the consent of Indenture Trustee or any of the Noteholders to
add, modify or eliminate such provisions as may be necessary or advisable in
order to enable all or a portion of the Trust (i) to qualify as, and to permit
an election to be made to cause the Trust to be treated as, a "financial asset
securitization investment trust" as described in the provisions of Section 860L
of the Code, and (ii) to avoid the imposition of state or local income or
franchise taxes imposed on the Trust's property or its income; PROVIDED,
HOWEVER, that (i) Transferor delivers to Indenture Trustee and Owner Trustee an
Officer's Certificate to the effect that the proposed amendments meet the
requirements set forth in this subsection, (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 Owner Trustee hereunder. The amendments
which Transferor may make without the consent of Noteholders pursuant to the
preceding sentence may include the addition of a Transferor of Receivables.
This Agreement may also be amended from time to time by a written
amendment duly executed and delivered by Transferor and Owner Trustee, with the
consent of Indenture Trustee and the Holders of Notes evidencing not less than
66 2/3% of the Outstanding Amount of the Notes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders;
PROVIDED, HOWEVER, that without the consent of all Noteholders, no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of distributions that are required to be made for
the benefit of the Noteholders or (b) reduce the aforesaid percentage of the
20
Outstanding Amount of the Notes, the Holders of which are required to consent to
any such amendment; PROVIDED FURTHER, that such amendment will not, as evidenced
by an Opinion of Counsel addressed and delivered to Owner Trustee and Indenture
Trustee, cause the Trust to be classified as an association (or a publicly
traded partnership) taxable as a corporation for federal income tax purposes.
Promptly after the execution of any such amendment or consent,
Transferor shall furnish written notification of the substance of such amendment
or consent to Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Noteholders pursuant
to this SECTION 10.1 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof
Promptly after the execution of any amendment to the Certificate of
Trust, Owner Trustee shall cause the filing of such amendment with the Secretary
of State of the State of Delaware.
Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer's Certificate of Transferor to the effect
that the conditions to amendment have been satisfied.
Owner Trustee may, but shall not be obligated to, enter into, and
unless it has consented thereto in writing shall not be bound by, any amendment
which affects Owner Trustee's own rights, duties, benefits, protections,
privileges or immunities (as such or in its individual capacity) under this
Agreement or otherwise.
Section 10.2. NO LEGAL TITLE TO TRUST ESTATE IN TRANSFEROR. Transferor
shall not have legal title to any part of the Trust Estate. No transfer, by
operation of law or otherwise, of any right, title, and interest of Transferor
to and in its undivided beneficial interest in the Trust Estate shall operate to
terminate this Agreement or annul, dissolve or terminate the Trust or entitle
any transferee to an accounting or to the transfer to it of legal title to any
part of the Trust Estate.
Section 10.3. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of Owner Trustee (as such or in its
individual capacity), the other Indemnified Parties, Transferor, and, to the
extent expressly provided herein, Indenture Trustee and the Noteholders, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
21
Section 10.4. NOTICES. Unless otherwise expressly specified or
permitted by the terms hereof, all notices and other communications shall be in
writing and shall be deemed given upon receipt by the intended recipient or
three (3) Business Days after mailing if mailed by certified mail, postage
prepaid (except that notice to Owner Trustee, Transferor or Indenture Trustee
shall be deemed given only upon actual receipt by Owner Trustee, Transferor or
Indenture Trustee), if to Owner Trustee, addressed to the Corporate Trust
Office; if to Indenture Trustee, addressed to BNY Midwest Trust Company, 0 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000; if to Transferor, addressed
to WFN Credit Company, LLC, 000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxx 00000,
Attn: President; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
Section 10.5. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.6. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.7. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, Transferor
and its permitted assignees and Owner Trustee (as such or in its individual
capacity) and its successors, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by Transferor shall
bind the successors and assigns of Transferor.
Section 10.8. NON-PETITION COVENANTS. Notwithstanding any prior
termination of the Trust or this Agreement, Chase Manhattan Bank USA, National
Association, individually or in its capacity as Owner Trustee, shall not at any
time institute against the Trust, Transferor or Certificate Trust, or solicit or
join or cooperate with or encourage any institution against the Trust,
Transferor or Certificate Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligation relating to the Notes, this Agreement or any of the Transaction
Documents; PROVIDED, HOWEVER, that this SECTION 10.8 shall not operate to
preclude any remedy described in ARTICLE V of the Indenture.
Notwithstanding any prior termination of the Trust or this Agreement,
Transferor shall not at any time institute against the Trust or Certificate
Trust, or solicit or join or cooperate with or encourage any institution against
the Trust or
22
Certificate Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, this Agreement or any of the Transaction Documents; PROVIDED,
HOWEVER, that this SECTION 10.8 shall not operate to preclude any remedy
described in ARTICLE V of the Indenture.
Section 10.9. NO RECOURSE. Each Person holding or owning the Transferor
Interest (or any interest therein), by accepting the Transferor Interest (or its
interest therein), acknowledges that the Transferor Interest does not represent
an interest in or obligation of Servicer, Owner Trustee (as such or in its
individual capacity), Indenture Trustee or any Affiliate thereof (other than the
Trust), and no recourse may be had against such parties or their assets, or
against the assets pledged under the Indenture, except as expressly provided in
the Transaction Documents.
Section 10.10. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. INTEGRATION OF DOCUMENTS. This Agreement constitutes the
entire agreement of the parties hereto and thereto with respect to the subject
matter hereof and supersedes all prior agreements relating to the subject matter
hereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Owner Trustee
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
WFN CREDIT COMPANY, LLC,
as Transferor
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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