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HRSI FUNDING, INC. II,
Transferor
and
WILMINGTON TRUST COMPANY,
Owner Trustee
TRUST AGREEMENT
Dated as of _________, 2001
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TABLE OF CONTENTS
PAGE
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Article I DEFINITIONS.......................................................... 1
Section 1.01. Capitalized Terms................................................. 1
Section 1.02. Other Definitional Provisions..................................... 3
Article II ORGANIZATION......................................................... 3
Section 2.01. Name.............................................................. 3
Section 2.02. Office............................................................ 3
Section 2.03. Purpose and Powers................................................ 4
Section 2.04. Appointment of Owner Trustee...................................... 4
Section 2.05. Initial Capital Contribution of Trust Estate...................... 4
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...................... 5
Section 2.10. Liability of Holders of the Certificates.......................... 6
Section 2.11. Payments and Distributions........................................ 6
Article III CERTIFICATES......................................................... 7
Section 3.01. Initial Ownership................................................. 7
Section 3.02. Form of Certificates.............................................. 7
Section 3.03. Authentication of Certificates.................................... 8
Section 3.04. Restrictions on Transfer.......................................... 8
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.................. 8
Section 3.06. Issuance of New Transferor Certificates........................... 9
Article IV ACTIONS BY OWNER TRUSTEE............................................. 10
Section 4.01. Prior Notice to Transferor with Respect to Certain Matters........ 10
Section 4.02. Restrictions on Power............................................. 11
Article V AUTHORITY AND DUTIES OF OWNER TRUSTEE................................ 11
Section 5.01. General Authority................................................. 11
Section 5.02. General Duties.................................................... 11
Section 5.03. Action Upon Instruction........................................... 11
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions 12
Section 5.05. No Action Except under Specified Documents or Instructions........ 12
Section 5.06. Restrictions...................................................... 13
Article VI CONCERNING THE OWNER TRUSTEE......................................... 13
Section 6.01. Acceptance of Trusts and Duties................................... 13
Section 6.02. Furnishing of Documents........................................... 14
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Section 6.03. Representations and Warranties.................................... 15
Section 6.04. Reliance; Advice of Counsel....................................... 15
Section 6.05. Not Acting in Individual Capacity................................. 16
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or Receivables... 16
Section 6.07. Owner Trustee May Own Notes....................................... 16
Article VII COMPENSATION OF OWNER TRUSTEE........................................ 17
Section 7.01. Owner Trustee's Fees and Expenses................................. 17
Section 7.02. Indemnification................................................... 17
Section 7.03. Payments to the Owner Trustee..................................... 17
Article VIII TERMINATION OF TRUST AGREEMENT....................................... 18
Section 8.01. Termination of Trust Agreement.................................... 18
Article IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES............... 18
Section 9.01. Eligibility Requirements for Owner Trustee........................ 18
Section 9.02. Resignation or Removal of Owner Trustee........................... 19
Section 9.03. Successor Owner Trustee........................................... 19
Section 9.04. Merger or Consolidation of Owner Trustee.......................... 20
Section 9.05. Appointment of Co-Trustee or Separate Trustee..................... 20
Article X MISCELLANEOUS........................................................ 21
Section 10.01. Supplements and Amendments........................................ 21
Section 10.02. No Legal Title to Trust Estate in Transferor...................... 23
Section 10.03. Limitations on Rights of Others................................... 23
Section 10.04. Notices........................................................... 23
Section 10.05. Severability...................................................... 23
Section 10.06. Separate Counterparts............................................. 24
Section 10.07. Successors and Assigns............................................ 24
Section 10.08. Nonpetition Covenants............................................. 24
Section 10.09. No Recourse....................................................... 24
Section 10.10. Headings.......................................................... 24
Section 10.11. GOVERNING LAW..................................................... 24
Section 10.12. Transferor Payment Obligation..................................... 25
Section 10.13. Acceptance of Terms of Agreement.................................. 25
Section 10.14. Integration of Documents.......................................... 25
EXHIBITS
EXHIBIT A FORM OF TRANSFEROR CERTIFICATE.................................... A-1
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HOUSEHOLD PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST I TRUST
AGREEMENT, dated as of __________, 2001, between HRSI FUNDING, INC. II, a
Delaware corporation, as Transferor, and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized Terms. For all purposes of this
Agreement, the following terms shall have the meanings set forth below:
"Administration Agreement" shall mean the Administration
Agreement, dated as of __________, 2001, between the Owner Trustee and Household
Finance Corporation, as Administrator.
"Administrator" shall mean Household Finance Corporation, or
any successor Administrator under the Administration Agreement.
"Agreement" shall mean this Trust Agreement relating to the
Household Private Label Credit Card Master Note Trust I, as the same may be
amended, modified or otherwise supplemented from time to time.
"Certificates" shall mean, unless otherwise indicated, the
Transferor Certificates and any Supplemental Certificates.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Corporate Trust Office" shall mean, 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, XX 00000-0000; 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
Transferor).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Expenses" shall have the meaning specified in Section 7.02.
"Foreclosure Remedy" shall have the meaning specified in the
Indenture.
"Indemnified Parties" shall have the meaning specified in
Section 7.02.
"Indenture" shall mean the Master Indenture, dated as of
_________, 2001, between the Owner Trustee and U.S. Bank National Association,
as Indenture Trustee, as the same may be amended, supplemented or otherwise
modified from time to time.
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"Indenture Trustee" shall mean U.S. Bank National Association,
not in its individual capacity but solely as Indenture Trustee under the
Indenture, and any successor Indenture Trustee under the Indenture.
"Issuer" shall mean the Trust.
"Owner" shall mean HRSI Funding, Inc. II, and its successors
and permitted assigns, in its capacity as holder of the Transferor Certificates.
"Owner Trustee" shall mean Wilmington Trust Company, a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee under this Agreement (unless otherwise specified herein), and any
successor Owner Trustee hereunder.
"Plan" shall mean (i) an employee benefit plan (within the
meaning of Section 3(3) of ERISA) that is subject to Title I of ERISA or (ii) a
plan (within the meaning of section 4975(e)(2) of the Code) that is subject to
section 4975 of the Code.
"Secretary of State" shall mean the Secretary of State of the
State of Delaware.
"Supplemental Certificate" shall have the meaning specified in
subsection 3.06(b).
"Transfer and Servicing Agreement" shall mean the Transfer and
Servicing Agreement, dated as of __________, 2001, among the Issuer, the
Transferor and Household Finance Corporation, as Servicer, as the same may be
amended, supplemented or otherwise modified from time to time.
"Transferor" shall mean HRSI Funding, Inc. II, in its capacity
as Transferor hereunder and its successors and assigns in such capacity.
"Transferor Certificate Supplement" shall have the meaning
specified in subsection 3.06(b).
"Transferor Certificates" shall mean the Transferor's
uncertificated interest in the Trust as set forth in Section 3.06; provided,
however, if the Transferor elects to evidence such interest in certificated form
pursuant to Section 3.06, the certificates shall be executed by the Transferor
and authenticated by or on behalf of the Owner Trustee, substantially in the
form of EXHIBIT A.
"Trust" shall mean the trust created by this Agreement, acting
by and through Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee.
"Trust Company" shall mean Wilmington Trust Company.
"Trust Estate" shall mean all right, title and interest of the
Owner Trustee in and to the property and rights assigned to the Owner Trustee
pursuant to Section 2.05 of this Agreement and Section 2.01 of the Transfer and
Servicing Agreement, all monies, investment property, instruments and other
property on deposit from time to time in the Collection Account, the Series
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Accounts and the Special Funding Account and all other property of the Trust
from time to time, including any rights of the Owner Trustee pursuant to the
Transaction Documents.
"Trust Termination Date" shall have the meaning specified in
Section 8.01.
Section 1.02. Other Definitional Provisions. Capitalized terms
used herein and not otherwise defined have the meanings assigned to them in the
Transfer and Servicing Agreement or, if not defined therein, in the Indenture.
(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 generally accepted accounting principles or regulatory
accounting principles, as applicable and as in effect on the date of this
Agreement. 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 generally accepted accounting principles or
regulatory accounting principles in the United States, the definitions contained
in this Agreement or in any such certificate or other document shall control.
(c) The words "HEREOF", "HEREIN" and "HEREUNDER" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; references to any
subsection, Section, Schedule or Exhibit are references to subsections,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "INCLUDING" means "INCLUDING WITHOUT LIMITATION."
(d) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.
ARTICLE II
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as
"Household Private Label Credit Card Master Note Trust I," in which name the
Owner Trustee may conduct the business of the Trust, make and execute contracts
and other instruments and xxx and be sued to the fullest extent permitted by
applicable law.
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 Indenture Trustee and the Transferor.
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Section 2.03. Purpose and Powers. The purpose of the Trust is
and the Owner Trustee shall have the power and authority to engage in the
following activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes and the
Certificates, to acquire the Receivables and related property and to
pay the Transferor the amounts owed pursuant to Section 2.01 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
Transferor and 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;
(iv) to enter into and perform its obligations under 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;
(vi) to own preferred stock in the Transferor; and
(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 Estate and the making of payments to the
Noteholders and distributions to the Transferor.
The Owner Trustee 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 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.
Section 2.05. Initial Capital Contribution of Trust Estate.
The Transferor hereby assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1 and one share of preferred stock
of the Transferor. The Owner Trustee hereby acknowledges receipt in trust from
the Transferor, as of the date hereof, of the foregoing contribution, which
shall constitute the initial Trust Estate and shall be held by the Owner
Trustee. The Transferor shall pay organizational expenses of the Trust as they
may arise or shall, upon the request of the Owner Trustee, promptly reimburse
the Owner Trustee for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The 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 the Transferor, subject
to the obligations of the Trust under the Transaction Documents
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to which it is a party. It is the intention of the parties hereto that the Trust
constitute a common law trust under the laws of the State of Delaware. It is the
intention of the parties hereto that, for income and franchise tax purposes, the
Trust shall be treated as a security device and disregarded as an entity and its
assets shall be treated as owned in whole by the Transferor. 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 with respect to accomplishing the purposes of the
Trust.
Section 2.07. Title to Trust Property. Legal title to all the
Trust Estate shall be vested at all times 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 and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee 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
the 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 in Delaware.
Section 2.09. Representations and Warranties of Transferor.
The Transferor hereby represents and warrants to the Owner Trustee that:
(a) The Transferor is a Delaware corporation 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
this Agreement and any other document related hereto to which it is a party and
to perform its obligations as contemplated hereby and thereby.
(b) The 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 the 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 this Agreement or
any other document related hereto to which the Transferor is a party.
(c) The execution and delivery of this Agreement and the
consummation of the transactions provided for in this Agreement and in the other
Transaction Documents to which the Transferor is a party have been duly
authorized by the Transferor by all necessary corporate action on its part and
each of this Agreement and the other Transaction Documents to which the
Transferor is a party will remain, from the time of its execution, an official
record of the Transferor; the Transferor has the power and authority to assign
the property to be assigned to and deposited with the Trust pursuant to Section
2.05 of this Agreement and Section 2.01 of the Transfer and Servicing Agreement.
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(d) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which the
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 the Transferor's ability to perform its
obligations under this Agreement).
(e) The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof will not conflict with or violate any
Requirements of Law applicable to the Transferor.
(f) There are no proceedings or investigations pending or, to
the best knowledge of the Transferor, threatened against the Transferor before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over the Transferor (i)
asserting the invalidity of any of the Transaction Documents to which the
Transferor is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by any of the Transaction Documents to which the
Transferor is a party, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Transferor, would materially and adversely affect the
performance by the Transferor of its obligations under the Transaction Documents
to which the 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 the Transferor is a party.
Section 2.10. Liability of Holders of the Certificates. The
holders of the Certificates, shall not be personally liable for the debts or
other obligations of the Trust except to the extent provided otherwise in the
Transaction Documents.
Section 2.11. Payments and Distributions.
(a) Any amount held by the Trust with respect to the Trust
Estate which is not, and will not be, allocable to the Indenture Trustee to be
applied in accordance with the Indenture, shall be applied on the first Business
Day following each Distribution Date in the following order:
(i) to the extent not otherwise paid, to pay any other
operating or administrative expenses of the Trust; and
(ii) to distribute any remaining amounts and other property to
the holders of the Certificates.
The Servicer shall deliver a statement to the Owner Trustee setting forth the
amounts to be applied pursuant to such clauses (i) and (ii), which the Owner
Trustee may rely upon in making any payment.
(b) All payments and distributions required to be made to the
holders of the Certificates pursuant to this Section 2.11 shall be made to the
holders of the Certificates by wire
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transfer of immediately available funds or by such other means as are acceptable
to the Owner Trustee at least five Business Days prior to such payment or
distribution; provided that, payments and distributions to the Holders of the
Certificates will only be made under this Section 2.11 to the extent that (i)
the value of the assets of the Trust exceed the value of the liabilities of the
Trust and (ii) following any such payment and distribution, the Trust will have
sufficient assets to satisfy all probable liabilities of the Trust and provided,
further, that the Owner Trustee shall assume that the provisions of clauses (i)
and (ii) are satisfied unless the Indenture Trustee informs the Owner Trustee
otherwise.
ARTICLE III
CERTIFICATES
Section 3.01. Initial Ownership. Upon the formation of the
Trust by the contribution pursuant to Section 2.05, the Transferor shall be the
Owner of the Trust.
Section 3.02. Form of Certificates.
(a) The Transferor or any Additional Transferor may elect at
any time, by written notice to the Trustee, to have its interest in the Trust be
(i) an uncertificated interest or (ii) evidenced by a certificate. The
Transferor Certificate, if certificated, will be issued in registered form,
substantially in the form of EXHIBIT A, and shall upon issue, be executed and
delivered by the Transferor to the Owner Trustee for authentication and
redelivery as provided in Section 3.03. If the Transferor or any Additional
Transferor elects to have its interest in the Trust be uncertificated, it shall
deliver to the Owner Trustee for cancellation any Transferor Certificate or
Supplemental Certificate, as the case may be, previously issued and the Owner
Trustee shall make appropriate entries in its books and records to evidence such
uncertificated interest in the Trust. The Owner Trustee shall keep with the
books and records of the Trust a register, in book-entry form, of each Person
owning any uncertificated interest in the Trust.
(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 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. The Owner
Trustee shall authenticate and deliver the Certificate, if certificated, 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 provided for herein, executed by or on
behalf of the Owner Trustee by the manual signature of a duly authorized
signatory, and such certificate upon any Certificate shall be conclusive
evidence, and the
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only evidence, that such Certificate has been duly authenticated and delivered
hereunder. Each Certificate shall be dated the date of its authentication.
Section 3.04. Restrictions on Transfer. 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, that a Certificate (or any interest therein)
may be sold, transferred, assigned, participated, pledged or otherwise disposed
of if the transferor thereof has provided (a) the Owner Trustee and the
Indenture Trustee with (i) a Tax Opinion relating to such sale, transfer,
assignment, participation, pledge or other disposition and (ii) a representation
letter from the transferee to the effect that the transferee is not a Plan and
is not acting on behalf of or investing the assets of a Plan and (b) each Rating
Agency written notice (unless such notice requirement is otherwise waived by the
Rating Agency) ten days prior to such transfer.
Section 3.05. Mutilated, Destroyed, Lost or Stolen
Certificate. If (a) any mutilated Certificate is surrendered to the Owner
Trustee, or the Owner Trustee receives evidence to its reasonable satisfaction
of the destruction, loss or theft of any Certificate, and (b) there is delivered
to the Owner Trustee such security or indemnity as may be required by it to hold
the Owner Trustee 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 any such mutilated, destroyed, lost or stolen Certificate, a
replacement Certificate of like tenor (including the same date of issuance) and
denomination. Upon the issuance of any replacement Certificate under this
Section, the Owner Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses connected therewith. Every replacement Certificate
issued pursuant to this Section in replacement of any mutilated, destroyed, lost
or stolen Certificate shall constitute complete and indefeasible evidence of an
interest in the Trust, as if originally issued, whether or not the mutilated,
destroyed, lost or stolen 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 ownership interest in the Trust Estate subject
to the lien of the Notes, including the right to receive Collections with
respect to the Receivables and other amounts at the times and in the amounts
specified in the Indenture and any Indenture Supplement to be paid to the
Transferor on behalf of all holders of the Transferor Certificates.
(b) In connection with the issuance of a new Series of
Investor Certificates, the designation of an Additional Transferor pursuant to
2.09(g) of the Transfer and Servicing Agreement or at any other time, a
Transferor may surrender its certificated or uncertificated Transferor
Certificate to the Owner Trustee in exchange for a newly issued certificated or
uncertificated Transferor Certificate and a second certificated or
uncertificated interest in the Transferor's interest (a "SUPPLEMENTAL
CERTIFICATE") in the Trust, the 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 10.01 to the extent that it
amends any of the terms of this Agreement); to be delivered to or upon the order
of the Transferor (or the Holder of a Supplemental Certificate, in the case of
the transfer and exchange thereof); provided,
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however, notwithstanding anything contained herein, any exchange of a
certificated Transferor Certificate for an uncertificated Transferor Certificate
or an uncertificated Transferor Certificate for a certificated Transferor
Certificate by the Holder of such Transferor Certificate shall not be subject to
the conditions set forth in clauses (i) through (vi) below. Except as set forth
in the proviso to the immediately preceding sentence, 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 (other than the Owner Trustee, the
Indenture Trustee and the Holder of the Supplemental Certificate, if
any);
(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 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;
(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 plus the
principal amount of any Participation Interest theretofore conveyed to
the Trust 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.
(c) Any Supplemental Certificate held by any Person may be
transferred or exchanged only upon the delivery to the 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.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
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Section 4.01. Prior Notice to Transferor with Respect to
Certain Matters. With respect to the following matters, unless otherwise
instructed by the Transferor, the Owner Trustee shall not take action unless at
least thirty (30) days before the taking of such action the Owner Trustee shall
have notified the Transferor:
(a) the initiation of any claim or lawsuit by the Trust or the
Owner Trustee (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 or
the Owner Trustee (other than an action to collect on the Trust Estate);
(b) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Transferor;
(d) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner that would not materially adversely affect the
interests of the Transferor; or
(e) the appointment pursuant to the Indenture of a replacement
or successor Note Registrar or Indenture Trustee, or the consent to the
assignment by the Note Registrar, Administrator or Indenture Trustee of its
obligations under the Indenture.
Section 4.02. Restrictions on Power. 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 Owner Trustee under any of
the Transaction Documents or would be contrary to Section 2.03.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority. The Owner Trustee is
authorized and directed to execute and deliver the Transaction Documents to
which it is a party and each certificate or other document attached as an
exhibit to or contemplated by the Transaction Documents to which the Owner
Trustee 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 is
authorized, but shall not be obligated, to take all actions required of the
Owner Trustee pursuant to the Transaction Documents. The Owner Trustee is
further authorized from time to time to take such action as the Transferor or
the Administrator directs in writing with respect to the Transaction Documents.
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Section 5.02. General Duties. 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 the other
Transaction Documents to which it is a party 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 its duties and
responsibilities hereunder and under the other Transaction Documents to the
extent the Administrator has agreed in the Administration Agreement or other
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 under the Administration Agreement.
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) 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 in good faith in accordance with any written instruction of
the Transferor received, the Owner Trustee shall not be liable on account of
such action to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten (10) days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not in violation of the Transaction
Documents, as it shall deem to be in the best interest of the Transferor, and
shall have no liability to any Person for such action or inaction.
(c) In the event that the Owner Trustee is unsure as to the
application of any provision of any Transaction Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the 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 (10) days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not in violation of the Transaction Documents, as it shall
deem to be in the best interests of the Transferor, and shall have no liability
to any Person for such action or inaction.
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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 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 Owner Trustee 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 hereunder or to
prepare or file any Commission filing for the Trust or to record any Transaction
Document. The Trust Company nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Trust Estate that result from actions by, or claims against,
the Trust Company that are not related to the ownership or the administration of
the Trust Estate or the transactions contemplated by the Transaction Documents.
Section 5.05. No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except (a) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (b) in accordance with the Transaction Documents and
(c) in accordance with 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 (a) that, to the actual knowledge of the Owner Trustee, would violate
the purposes of the Trust set forth in Section 2.03 or (b) that would result in
the Trust's becoming an association (or publicly traded partnership) taxable as
a corporation for federal income tax purposes. In accordance with the foregoing,
neither the Owner nor any Certificateholder will, under any circumstances, and
at any time, make an election on IRS Form 8832 or otherwise, to classify the
Trust as an association taxable as a corporation for federal, state or any other
applicable tax purpose. The Transferor shall not direct the Owner Trustee to
take action that would violate the provisions of this Section.
ARTICLE VI
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 moneys actually
received by it constituting part of the Trust Estate upon the terms of the
Transaction Documents. The Owner Trustee shall not be answerable or accountable
under any Transaction Document under any circumstances, except (i) for its own
willful misconduct or negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.03 expressly made by the
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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 funds or otherwise
incur any financial liability in the performance of any of its 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) except for Section 6.03 herein, under no circumstances
shall the Owner Trustee be liable for any representation, warranty, consent or
other 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 or for the due
execution hereof by the Transferor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in respect
of the validity or sufficiency of the Transaction Documents, other than the
genuineness of the signature on the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to the Owner, 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 under any of the Transaction Documents or otherwise, and the Owner
Trustee shall have no obligation or liability to perform the obligations of the
Owner Trustee under the Transaction Documents 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 for, other
than its negligence or willful misconduct in the performance of, 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
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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 subdivisions 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 the preceding sentence.
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 hereof 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 banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of 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.
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 reasonably
believed by it to be genuine and reasonably believed by it to be signed by the
proper party or parties. The Owner Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party 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 officers
of the relevant party,
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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.
Section 6.05. Not Acting in Individual Capacity. Except as
expressly provided in this Article VI, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by any Transaction Document shall
look only to the Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates, Notes
or Receivables. The recitals contained herein and in the Certificates (other
than the genuineness of the signature and counter-signature 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 counter-signature of the Owner Trustee on the Certificates),
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 Estate or its
ability to generate the payments to be distributed to the Noteholders under the
Indenture, including, without limitation: 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.
Section 6.08. Payments from Owner Trust Estate. All payments
to be made by the Owner Trustee or any Paying Agent under this Agreement or any
of the Transaction
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Documents or, with respect to Certificates, any Series Supplement or any Series
related Document to which the Trust or the Owner Trustee is a party shall be
made only from the income and proceeds of the Trust Estate and only to the
extent that the Owner Trustee shall have received income or proceeds from the
Trust Estate to make such payments in accordance with the terms hereof.
Wilmington Trust Company, or any successor thereto, in its individual capacity,
shall not be liable for any amounts payable under this Agreement or any of the
Transaction Documents or, with respect to the Notes, the Certificates or any
Series related document to which the Trust or the Owner Trustee is a party.
ARTICLE VII
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 between the Transferor
and the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed
by the Transferor 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; provided, however, that the Owner Trustee's right to enforce such
obligation shall be subject to the provisions of Section 10.08.
Section 7.02. Indemnification. To the fullest extent permitted
by law, the Transferor shall be liable as primary obligor for, and shall
indemnify the Trust Company and its successors, assigns, agents, employees and
servants (collectively, the "INDEMNIFIED PARTIES") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"EXPENSES") which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of the Transaction Documents, the Trust Estate, the acceptance and
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder; 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; 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
negligence, or (ii) the inaccuracy of any representation or warranty contained
in Section 6.03 made by the Indemnified Party. An Indemnified Party's right to
enforce such obligation shall be subject to the provisions of Section 10.08. The
indemnities contained in this Section 7.02 shall survive the resignation or
removal of the Owner Trustee or the termination of this Agreement. In the event
of any claim, action or proceeding for which indemnity will be sought pursuant
to this Section 7.02, the Owner Trustee's choice of legal counsel shall be
subject to the approval of the Transferor, which approval shall not be
unreasonably withheld.
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Section 7.03. Payments to the Owner Trustee. Any amounts paid
to an Indemnified Party pursuant to this Article VII shall be deemed not to be a
part of the Trust Estate immediately after such payment.
Section 7.04. Non-recourse Obligations. Notwithstanding
anything in this Agreement or any Transaction Document or, with respect to
Certificates or Notes, any Indenture Supplement or any Series related document,
the Owner Trustee agrees in its individual capacity and in its capacity as Owner
Trustee for the Trust that all obligations of the trust to the Owner Trustee
individually or as Owner Trustee for the Trust shall be recourse to the Trust
Estate only and specifically shall not be recourse to the assets of any
Certificateholder or Owner.
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement.
(a) The Trust shall terminate upon the earlier of (i)
dissolution of the Trust in accordance with applicable law and (ii) at the
option of the Transferor, the day on which the right of all series of Notes to
receive payments from the Trust Estate has terminated (the "TRUST TERMINATION
DATE"). Any money or other property held as part of the Trust Estate following
such termination shall be distributed to the Transferor. The bankruptcy,
liquidation, dissolution, termination, death or incapacity of the Transferor
shall not (x) operate to terminate this Agreement or the Trust, or (y) 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 Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 8.01(a), so long as the
Indenture shall not have been terminated in accordance with its terms, this
Agreement and the Trust created hereby are irrevocable by the Transferor, unless
the Indenture Trustee consents in writing to the termination.
(c) Upon the winding up of the Trust, this Agreement (other
than Article VII) shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation authorized to exercise
corporate 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 long-term unsecured
rating of at least
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Baa3 by Moody's, at least BBB- by Standard & Poor's and, if rated by Fitch, at
least BBB- by Fitch, or otherwise satisfactory to each Rating Agency. If such
corporation 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
corporation 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 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 fees 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 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.
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
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Owner Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties, and
obligations.
No successor Owner Trustee shall accept appointment as
provided in this Section 9.03 unless at the time of such acceptance such
successor Owner Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Transferor shall mail notice of such acceptance of
appointment including the name of such successor Owner Trustee to the Indenture
Trustee, the Noteholders and each Rating Agency. If the 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 the Transferor.
Section 9.04. Merger or Consolidation of Owner Trustee.
Notwithstanding anything herein to the contrary, any corporation into which the
Owner Trustee may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Owner Trustee shall be a party, or any corporation 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 corporation
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 the Owner Trustee shall mail notice
of such merger or consolidation to each Rating Agency.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, 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 Estate,
and to vest in such Person, in such capacity, such title to the Trust Estate, 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
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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.
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments. This Agreement may
be amended from time to time, by a written amendment duly executed and delivered
by the Transferor and the Owner Trustee, with the written consent of the
Indenture Trustee and 10 days prior written notice to the Rating Agencies, but
without the consent of any of the Noteholders, 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 such amendment will not (i) as evidenced by an Officer's
Certificate of the Transferor addressed and delivered to the Owner Trustee and
the Indenture Trustee, materially and adversely affect the interest of any
Noteholder or the Owner and (ii) as evidenced by an Opinion of Counsel addressed
and delivered
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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 of this
Agreement may be amended only with the consent of the Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes.
Additionally, notwithstanding the preceding sentence, this Agreement will be
amended by the 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 subsection, (ii) each Rating Agency will have notified the Transferor, the
Servicer, the Indenture Trustee and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the rating of any
outstanding Series or Class as to which it is a Rating Agency and (iii) such
amendment does not affect the rights, 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.
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 prior written notice to each Rating Agency, with the consent of
the Indenture Trustee and, the Holders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that without the consent of all Noteholders, no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of distributions that are required to be made for
the benefit of the Noteholders or (b) reduce the aforesaid percentage of the
Outstanding Amount of the Notes, the Holders of which are required to consent to
any such amendment; provided, further, such amendment shall be subject to
delivery to the Indenture Trustee of a Tax Opinion.
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.
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 such amendment have been satisfied.
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The Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
Section 10.02. No Legal Title to Trust Estate in Transferor.
The 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
the Transferor to and in its beneficial ownership interest in the Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
Section 10.03. Limitations on Rights of Others. The provisions
of this Agreement are solely for the benefit of the Owner Trustee, 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 Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04. Notices. Unless otherwise expressly specified
or permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Owner Trustee or Indenture Trustee shall be deemed given only upon actual
receipt by the Owner Trustee or Indenture Trustee), if to the Owner Trustee,
addressed to the Corporate Trust Office; if to the Indenture Trustee, addressed
to U.S. Bank National Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, if to the Transferor, addressed to HRSI Funding, Inc. II, 0000 Xxxxxxx
Xxxx, Xxxxxxxx Xxxxxxx, XX 00000, Attention: President, if to Fitch, addressed
to Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000, Attention: ABS
Surveillance, if to Moody's, addressed to Xxxxx'x Investors Service Inc., 00
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: ABS Monitoring Group, if to
Standard & Poor's, addressed to Standard & Poor's Ratings Group, 00 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Credit Card ABS or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party.
Section 10.05. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
the Owner Trustee and its successors and the Transferor and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by the Transferor shall bind the
successors and assigns of the Transferor.
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Section 10.08. Nonpetition Covenants. Notwithstanding any
prior termination of the Trust or this Agreement, the Owner Trustee (not in its
individual capacity) shall not at any time with respect to the Trust or the
Transferor, acquiesce, petition or otherwise invoke or cause the Trust or the
Transferor to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Trust or the Transferor
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 the Transferor or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust or the Transferor; provided, however, that this Section 10.08 shall not
operate to preclude any remedy described in Article V of the Indenture.
Section 10.09. No Recourse. Each Person owning or holding a
Certificate by accepting the Certificates (other than the Trust) acknowledges
that the Certificates do not represent interest in or obligations of the
Servicer, the Administrator, 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 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. Transferor Payment Obligation. The Transferor
shall be responsible for payment of the Administrator's fees under the
Administration Agreement (to the extent not paid pursuant to the applicable
Indenture Supplement) and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
Section 10.13. Acceptance of Terms of Agreement. THE RECEIPT
AND ACCEPTANCE OF THE TRANSFEROR CERTIFICATE BY THE TRANSFEROR, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE TRANSFEROR 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 BETWEEN THE TRUST
AND THE TRANSFEROR.
Section 10.14. Integration of Documents. This Agreement
constitutes the entire agreement of the parties hereto and thereto with respect
to the subject matter hereof and thereof and supersedes all prior agreements
relating to the subject matter hereof and thereof.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY,
By:
-----------------------------------------
Name:
Title:
HRSI FUNDING, INC. II,
as Transferor,
By:
-----------------------------------------
Name:
Title:
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EXHIBIT A
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 TRANSFER AND SERVICING AGREEMENT REFERRED TO
HEREIN.
No. R-__ One Unit
HOUSEHOLD PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST I
TRANSFEROR CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST
IN CERTAIN ASSETS OF THE
HOUSEHOLD PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST I
Evidencing an interest in a trust, the corpus of which
consists primarily of an interest in receivables generated from time to time in
the ordinary course of business in a portfolio of revolving credit accounts
transferred by HRSI Funding, Inc. II (the "TRANSFEROR").
(Not an interest in or obligation of the Transferor
or any affiliate thereof)
This certifies that HRSI FUNDING, INC. II is the registered
owner of an undivided beneficial ownership interest in the assets of a trust
(the "TRUST") subject to the lien of the Noteholders pursuant to the Master
Indenture dated as of _________, 2001 (as amended and supplemented, the
"INDENTURE") between the Trust and U.S. Bank National Association, as Indenture
Trustee and not allocated to the interest of any Holder of a Supplemental
Certificate pursuant to the Trust Agreement dated as of _________, 2001 (as
amended and supplemented, the "TRUST AGREEMENT"), between HRSI Funding, Inc. II,
a Delaware corporation, as Transferor, and Wilmington Trust Company, as owner
trustee (the "OWNER TRUSTEE"). The corpus of the Trust consists of (a) a
portfolio of certain receivables (the "RECEIVABLES") existing in the revolving
credit accounts identified under the Transfer and Servicing Agreement dated as
of __________, 2001 (the "TRANSFER AND SERVICING AGREEMENT"), among the
Transferor, Household Finance Corporation, as Servicer (the "SERVICER") and the
Trust, as Issuer from time to time (the "ACCOUNTS"), (b) certain Receivables
generated under the Accounts from time to time thereafter, (c) certain funds
collected or to be collected from accountholders in respect of the Receivables,
(d) all funds which are from time to time on deposit in the Collection Account,
Special Funding Account and in the Series Accounts, (e) the benefits of any
Series Enhancements issued and to be issued by Series Enhancers
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with respect to one or more Series of Notes and (f) all other assets and
interests constituting the Trust, including 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. A copy of the Agreements may be requested from
the Owner Trustee by writing to the Owner Trustee at the Corporate Trust Office.
To the extent not defined herein, the capitalized terms used herein have the
meanings ascribed to them 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 and Administration Receivables
which arise generally from Periodic Finance Charges, Late Fees and other fees
and charges with respect to the Accounts.
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, which will represent obligations
of the Trust, 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
entering into the Transfer and Servicing Agreement and by the acceptance of this
Transferor Certificate, agrees to treat the Notes for all 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 on the Trust Termination Date.
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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, this Certificate to be duly executed by
the Owner Trustee.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the
HOUSEHOLD PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST I
By:
-----------------------------------------
Name:
Title:
Dated: [_________ __, ____]
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate described in the
within-mentioned Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the
HOUSEHOLD PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST I
By:
----------------------------------------
Authorized Signatory
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