NORDSTROM CREDIT CARD RECEIVABLES II LLC, as Transferor, and WILMINGTON TRUST COMPANY, as Owner Trustee SECOND AMENDED AND RESTATED TRUST AGREEMENT Dated as of May 1, 2007
[Exhibit 99.5]
NORDSTROM CREDIT CARD RECEIVABLES II LLC,
as Transferor,
as Transferor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
as Owner Trustee
SECOND AMENDED AND
RESTATED TRUST
AGREEMENT
RESTATED TRUST
AGREEMENT
Dated as of May 1, 2007
TABLE OF CONTENTS
Page | ||||||
ARTICLE ONE |
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DEFINITIONS |
||||||
Section 1.01. |
Capitalized Terms | 1 | ||||
Section 1.02. |
Other Definitional Provisions | 4 | ||||
ARTICLE TWO |
||||||
ORGANIZATION |
||||||
Section 2.01. |
Name | 5 | ||||
Section 2.02. |
Office | 5 | ||||
Section 2.03. |
Purpose and Powers | 5 | ||||
Section 2.04. |
Appointment of Owner Trustee | 6 | ||||
Section 2.05. |
Initial Capital Contribution of Trust Assets | 6 | ||||
Section 2.06. |
Declaration of Trust | 6 | ||||
Section 2.07. |
Title to Trust Property | 6 | ||||
Section 2.08. |
Situs of Trust | 7 | ||||
Section 2.09. |
Representations and Warranties of Transferor | 7 | ||||
Section 2.10. |
Liability of Certificateholders | 8 | ||||
ARTICLE THREE |
||||||
CERTIFICATES |
||||||
Section 3.01. |
Initial Ownership | 9 | ||||
Section 3.02. |
Form of Certificates | 9 | ||||
Section 3.03. |
Authentication of Certificates | 9 | ||||
Section 3.04. |
Restrictions on Transfer | 9 | ||||
Section 3.05. |
Mutilated, Destroyed, Lost or Stolen Certificate | 10 | ||||
Section 3.06. |
Issuance of New Transferor Certificates | 10 | ||||
ARTICLE FOUR |
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ACTIONS BY OWNER TRUSTEE |
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Section 4.01. |
Prior Notice to Owner and Transferor with Respect to Certain Matters | 12 | ||||
Section 4.02. |
Restrictions on Power | 12 |
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Page | ||||||
ARTICLE FIVE |
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AUTHORITY AND DUTIES OF OWNER TRUSTEE |
||||||
Section 5.01. |
General Authority | 13 | ||||
Section 5.02. |
General Duties | 13 | ||||
Section 5.03. |
Action Upon Instruction | 13 | ||||
Section 5.04. |
No Duties Except as Specified in this Agreement or in Instructions | 14 | ||||
Section 5.05. |
No Action Except under Specified Documents or Instructions | 14 | ||||
Section 5.06. |
Restrictions | 14 | ||||
ARTICLE SIX |
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CONCERNING THE OWNER TRUSTEE |
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Section 6.01. |
Acceptance of Trusts and Duties | 15 | ||||
Section 6.02. |
Furnishing of Documents | 16 | ||||
Section 6.03. |
Representations and Warranties | 16 | ||||
Section 6.04. |
Reliance; Advice of Counsel | 17 | ||||
Section 6.05. |
Not Acting in Individual Capacity | 18 | ||||
Section 6.06. |
Owner Trustee Not Liable for Certificates, Notes or Receivables | 18 | ||||
Section 6.07. |
Owner Trustee May Own Notes | 18 | ||||
ARTICLE SEVEN |
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COMPENSATION OF OWNER TRUSTEE |
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Section 7.01. |
Owner Trustee's Fees and Expenses | 19 | ||||
Section 7.02. |
Indemnification | 19 | ||||
Section 7.03. |
Payments to the Owner Trustee | 19 | ||||
ARTICLE EIGHT |
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TERMINATION OF TRUST AGREEMENT |
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Section 8.01. |
Termination of Trust Agreement | 20 |
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Page | ||||||
ARTICLE NINE |
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SUCCESSOR AND ADDITIONAL OWNER TRUSTEES |
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Section 9.01. |
Eligibility Requirements for Owner Trustee | 21 | ||||
Section 9.02. |
Resignation or Removal of Owner Trustee | 21 | ||||
Section 9.03. |
Successor Owner Trustee | 22 | ||||
Section 9.04. |
Merger or Consolidation of Owner Trustee | 22 | ||||
Section 9.05. |
Appointment of Co-Trustee or Separate Trustee | 22 | ||||
ARTICLE TEN |
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TAX MATTERS |
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Section 10.01. |
Tax and Accounting Characterization | 24 | ||||
Section 10.02. |
Signature on Returns; Tax Matters Partner | 24 | ||||
Section 10.03. |
Tax Reporting | 24 | ||||
ARTICLE ELEVEN |
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MISCELLANEOUS |
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Section 11.01. |
Supplements and Amendments | 25 | ||||
Section 11.02. |
No Legal Title to Trust Assets in Transferor | 26 | ||||
Section 11.03. |
Limitations on Rights of Others | 26 | ||||
Section 11.04. |
Notices | 26 | ||||
Section 11.05. |
Severability | 27 | ||||
Section 11.06. |
Counterparts | 27 | ||||
Section 11.07. |
Successors and Assigns | 27 | ||||
Section 11.08. |
Third-Party Beneficiaries | 27 | ||||
Section 11.09. |
Nonpetition Covenants | 27 | ||||
Section 11.10. |
No Recourse | 27 | ||||
Section 11.11. |
Effect of Headings and Table of Contents | 27 | ||||
Section 11.12. |
GOVERNING LAW | 27 | ||||
Section 11.13. |
Acceptance of Terms of Agreement | 28 | ||||
Section 11.14. |
Merger and Integration | 28 | ||||
Section 11.15. |
Certificates Nonassessable and Fully Paid | 28 | ||||
Exhibit A — Form of Ownership Interest Certificate | A-1 | |||||
Exhibit B — Form of Transferor Certificate | B-1 | |||||
Exhibit C — Form of Certificate of Trust | C-1 |
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SECOND AMENDED AND RESTATED TRUST AGREEMENT
This Second Amended and Restated Trust Agreement, dated as of May 1, 2007, is between
Nordstrom Credit Card Receivables II LLC (formerly known as Nordstrom Private Label Receivables
LLC), a Delaware limited liability company, as Transferor, and Wilmington Trust Company, as Owner
Trustee.
RECITALS
WHEREAS, the Transferor is a limited liability company formed pursuant to and in accordance
with the Delaware Limited Liability Company Act (6 Del. Code § 18-101 et
seq.) on October 11, 2001, and governed by the Amended and Restated Limited Liability
Company Agreement, dated as of May 1, 2007, among Nordstrom Credit, Inc., as the sole equity member
(the “Member”), and D. Xxxx Xxxxxxxx and Xxxx Xxxxxx, as the Special Members;
WHEREAS, the parties hereto entered into an Amended and Restated Trust Agreement, dated as of
October 1, 2001 (the “Amended and Restated Trust Agreement”) to provide for the continuation of the
Nordstrom Private Label Credit Card Master Note Trust (the “Trust”) for the purpose of, among other
things, taking assignments and conveyances and holding in trust various assets;
WHEREAS, the Transferor has acquired an interest in certain Private Label Receivables (as
defined herein) and will acquire a Participation Interest (as defined herein) in certain VISA®
receivables and related assets which it desires to transfer to the Trust; and
WHEREAS, the parties hereto desire to amend and restate the Amended and Restated Trust
Agreement.
NOW, THEREFORE, in consideration of the mutual terms and covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms. Whenever used in this Agreement, the following words
and phrases shall have the meanings set forth below:
“Administration Agreement” means the Amended and Restated Administration Agreement,
dated as of May 1, 2007, between the Issuer and the Bank, as amended, supplemented, restated or
otherwise modified from time to time.
“Administrator” means the Bank, in its capacity as Administrator under the
Administration Agreement, or its successors in such capacity.
“Agreement” means this Second Amended and Restated Trust Agreement, as amended,
supplemented, restated or otherwise modified from time to time.
“Bank” means Nordstrom fsb and its successors.
“Statutory Trust Statute” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
C. § 3801, et seq., as amended or supplemented from time to time.
“Certificate of Trust” means the Certificate of Trust filed with the Secretary of
State of the State of Delaware on October 16, 2001.
“Certificateholder” means a holder of a Certificate.
“Certificates” means, unless otherwise indicated, the Transferor Certificates, the
Supplemental Certificates and the Ownership Interest Certificate.
“Closing Date” means May 1, 2007.
“Corporate Trust Office” means, with respect to the Owner Trustee, the principal
corporate trust office of the Owner Trustee located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration (facsimile no.
(000) 000-0000); or such other address as the Owner Trustee may designate by notice to the
Transferor, or the principal corporate trust office of any successor Owner Trustee (the address of
which the successor Owner Trustee will notify the Owner and the Transferor).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Expenses” means any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever.
“Indemnified Parties” means the Owner Trustee and its successors, assigns, directors,
officers, agents, employees and servants.
“Indenture” means the Master Indenture, as supplemented by the related Indenture
Supplement, as the same may be amended, supplemented, restated or otherwise modified from time to
time.
“Indenture Supplement” means, with respect to any Series, a supplement to the Master
Indenture, executed by the parties thereto and delivered in connection with the original issuance
of the Notes of such Series pursuant to Section 10.01 of the Master Indenture, and an amendment to
the Master Indenture executed pursuant to Sections 10.01 or 10.02 of the Master Indenture, and, in
either case, including all amendments thereof and supplements thereto.
“Indenture Trustee” means Xxxxx Fargo Bank, National Association, not in its
individual capacity but solely as Indenture Trustee under the Indenture, and its successors in such
capacity.
“Issuer” means the Trust and its successors in such capacity.
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“Master Indenture” means the Amended and Restated Master Indenture, dated as of May 1,
2007, between the Trust and the Indenture Trustee, as amended, supplemented, or otherwise modified
from time to time.
“Offered Notes” has the meaning set forth in the related Indenture.
“Owner” means the Transferor in its capacity as beneficial owner of the Trust
hereunder, and its successors in such capacity.
“Owner Trustee” means Wilmington Trust Company, not in its individual capacity but
solely as Owner Trustee under this Agreement, and its successors in such capacity.
“Ownership Interest Certificate” means the certificate evidencing the beneficial
ownership interest of the Owner in the Trust, substantially in the form attached hereto as Exhibit
A.
“Participation Interest” means, individually, an undivided beneficial interest equal
to the Participation Percentage in and to each VISA® Receivable and, collectively, an
undivided beneficial interest equal to the Participation Percentage in and to the pool of
VISA® Receivables originated by the Bank, and the collections on such VISA®
Receivable or VISA® Receivables and other related assets, as the context may
require.
“Participation Percentage” means 90%, or such other amount as may be specified by the
Bank to Nordstrom Credit, Inc. from time to time in wiriting.
“Private Label Receivables” has the meaning set forth in the Receivables Purchase
Agreement.
“Receivables Purchase Agreement” means the Amended and Restated Receivables Purchase
Agreement, dated as of May 1, 2007, between Nordstrom Credit, Inc., as seller, and the Transferor,
as purchaser, as the same may be amended, supplemented or otherwise modified from time to time.
“Secretary of State” means the Secretary of State of the State of Delaware or any
successor thereto.
“Series 0000-0 Xxxxxxxxx Supplement” means the Series 0000-0 Xxxxxxxxx Supplement,
dated as of May 1, 2007, between the Trust, as Issuer, and the Indenture Trustee.
“Supplemental Certificate” has the meaning specified in Section 3.06(b).
“Transfer and Servicing Agreement” means the Amended and Restated Transfer and
Servicing Agreement, dated as of May 1, 2007, among the Issuer, the Transferor, the Indenture
Trustee and the Bank, as amended, supplemented, restated or otherwise modified from time to time.
“Transferor” means Nordstrom Credit Card Receivables II LLC (formerly known as
Nordstrom Private Label Receivables LLC), and its successors in such capacity.
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“Transferor Certificate Supplement” has the meaning specified in Section 3.06(b).
“Transferor Certificates” means the certificates executed by the Owner Trustee on
behalf of the Trust and authenticated by or on behalf of the Owner Trustee, substantially in the
form attached hereto as Exhibit B.
“Trust” means Nordstrom Credit Card Master Note Trust II (formerly known as Nordstrom
Private Label Master Note Trust).
“Trust Termination Date” means the day on which the rights of all Series of Notes to
receive payment from the Trust have terminated.
Section 1.02. Other Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Transfer and Servicing Agreement or the Indenture, as the case may be. All
terms defined in this Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such
certificate or other document, and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the respective meanings given
to them under GAAP. To the extent that the definitions of accounting terms in this Agreement or in
any such certificate or other document are inconsistent with the meanings of such terms under GAAP,
the definitions contained in this Agreement or in any such certificate or other document shall
control.
(c) For all purposes of this Agreement, except as otherwise expressly provided or unless the
context otherwise requires, (i) terms used herein include, as appropriate, all genders and the
plural as well as the singular, (ii) references to this Agreement include all Exhibits hereto,
(iii) references to words such as “herein”, “hereof” and the like shall refer to this Agreement as
a whole and not to any particular part, Article or Section within this Agreement, (iv) references
to an Article or Section such as “Article One” or “Section 1.01” and the like shall refer to the
applicable Article or Section of this Agreement, (v) the term “include” and all variations thereof
shall mean “include without limitation”, (vi) the term “or” shall include “and/or” and (vii) the
term “proceeds” shall have the meaning ascribed to such term in the UCC.
4
ARTICLE TWO
ORGANIZATION
Section 2.01. Name. The Trust continued hereby shall be known as “Nordstrom Credit
Card Master Note Trust II”, in which name the Trust and the Owner Trustee on behalf of the Trust
shall each have power and authority and is hereby authorized and empowered to and may conduct the
business of the Trust and may engage in the activities permitted in this Agreement, make and
execute contracts and other instruments on behalf of the Trust and xxx and be sued, to the extent
provided herein. This Agreement amends and restates in its entirety the Amended and Restated Trust
Agreement dated as of October 1, 2001, between the Transferor and the Owner Trustee.
Section 2.02. Office. The office of the Trust shall be in care of the Owner Trustee
at the Corporate Trust Office or at such other address in the State of Delaware as the Owner
Trustee may designate by written notice to the Owner, the Indenture Trustee and the Transferor.
Section 2.03. Purpose and Powers. The sole purpose of the Trust is to engage in the
activities set forth in this Section. The Trust shall have power and authority and is hereby
authorized and empowered, without the need for further action on the part of the Trust, and the
Owner Trustee shall have power and authority, and is hereby authorized and empowered, in the name
and on behalf of the Trust, to do or cause to be done all acts and things necessary, appropriate or
convenient to cause the Trust to engage in the activities set forth in this Section as follows:
(i) to execute, deliver and issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell the Notes upon the written order of the
Transferor;
(ii) with the net proceeds of the sale of the Notes, to acquire the Trust Assets and to
pay transactional expenses;
(iii) to pay interest on and principal of the Notes and the Certificates and to pay any
excess collections to the Transferor, as holder of the Transferor Certificate, pursuant to
the Series 0000-0 Xxxxxxxxx Supplement;
(iv) to assign, grant, pledge and mortgage the Collateral pursuant to the Indenture to
the Indenture Trustee as security for the Notes and to hold, manage and distribute to the
Transferor, the Owner or the Noteholders pursuant to the terms of this Agreement and the
Transaction Documents any portion of the Collateral released from the lien of, and remitted
to the Trust pursuant to, the Indenture;
(v) to enter into, execute, deliver and perform the Transaction Documents to which it
is to be a party;
(vi) to engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or
connected therewith; and
5
(vii) subject to compliance with the Transaction Documents, to engage in such other
activities as may be required in connection with conservation of the Trust Assets and the
making of payments to the Noteholders and the Certificateholders and distributions to the
Transferor.
Notwithstanding the grant of power and authority to the Owner Trustee set forth herein, the
Transferor may, in its sole discretion, sign and file registration statements on behalf of the
Trust under the Securities Act, registering the offer and sale of Notes or Certificates issued by
the Trust and periodic reports relating to such Notes or Certificates required to be filed under
the Exchange Act, and the rules and regulations of the Commission thereunder. Furthermore, the
Trust shall not have power, authority or authorization to, and shall not, engage in any activity
other than in connection with the foregoing or other than as required or authorized by the terms of
this Agreement or the other Transaction Documents.
Section 2.04. Appointment of Owner Trustee. The Transferor hereby appoints the Owner
Trustee as trustee of the Trust effective as of the date hereof, to have all the rights, powers and
duties set forth herein and, to the extent not inconsistent herewith, in the Statutory Trust
Statute, and the Owner Trustee hereby accepts such appointment.
Section 2.05. Initial Capital Contribution of Trust Assets. The Transferor hereby
sells, assigns, transfers, conveys and sets over to the Owner Trustee, as of the date hereof, the
sum of $10.00. The Owner Trustee hereby acknowledges receipt in trust from the Transferor, as of
such date, of the foregoing contribution, which shall constitute the initial Trust Assets and shall
be held by the Owner Trustee. The Transferor shall pay the organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares that it will
hold the Trust Assets in trust upon and subject to the conditions set forth herein for the use and
benefit of the Certificateholders, who are intended to be “beneficial owners” within the meaning of
the Statutory Trust Statute subject to the obligations of the Trust under the Transaction
Documents. It is the intention of the parties hereto that the Trust constitute a statutory trust
under the Statutory Trust Statute and that this Agreement constitute the governing instrument of
such statutory trust. The parties hereto agree that they will take no action contrary to the
foregoing intention. Effective as of the date hereof, the Owner Trustee shall have all rights,
powers and duties set forth herein and, to the extent not inconsistent herewith, in the Statutory
Trust Statute with respect to accomplishing the purposes of the Trust.
Section 2.07. Title to Trust Property. Legal title to the Trust Assets shall be
vested at all times in the Trust as a separate legal entity except where applicable law in any
jurisdiction requires title to any part of the Trust Assets to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
6
Section 2.08. Situs of Trust. The Trust will be located in Delaware and administered
in the State of Delaware and in the State of the location of the Administrator. All bank accounts
maintained by the Owner Trustee on behalf of the Trust shall be located in the States of
Washington, Colorado, Delaware or 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 the States of Washington, Colorado, Delaware or New York, and
payments will be made by the Trust only in such States. The only office of the Trust will be at
the Corporate Trust Office.
Section 2.09. Representations and Warranties of Transferor. The Transferor hereby
represents and warrants to the Owner Trustee that:
(a) The Transferor is a limited liability company duly organized and validly existing
in good standing under the laws of the State of Delaware, with power, authority and legal
right to own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted, and had at all relevant times, and has,
power, authority and legal right to acquire, own and sell the Receivables.
(b) The Transferor is duly qualified to do business as a limited liability company and
is in good standing and has obtained all necessary licenses and approvals in each
jurisdiction in which the failure to so qualify or to obtain such licenses and approvals
would materially and adversely affect the performance by the Transferor of its obligations
under, or the validity or enforceability of, this Agreement, any of the other Transaction
Documents to which it is a party, the Receivables, the Notes or the Certificates.
(c) The Transferor has (i) the power and authority to execute and deliver this
Agreement and to carry out its terms, (ii) the power and authority to transfer the Owner
Trust Assets to and deposit the same with the Trust, (iii) duly authorized such transfer and
deposit to the Trust by all necessary action and (iv) duly authorized the execution,
delivery and performance of this Agreement by all necessary action.
(d) Each of this Agreement and the other Transaction Documents to which the Transferor
is a party constitutes a legal, valid and binding obligation of the Transferor, enforceable
in accordance with its terms, except as such enforceability may be subject to or limited by
bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent
conveyance or other similar laws affecting the enforcement of creditors’ rights in general
and by general principles of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or in law.
(e) The execution, delivery and performance by the Transferor of this Agreement and the
other Transaction Documents to which the Transferor is a party, the consummation of the
transactions contemplated by this Agreement and the fulfillment of the terms hereof and
thereof do not conflict with, result in any breach of any of the terms and provisions of,
nor constitute (with or without notice or lapse of time) a default under, the limited
liability company agreement of the Transferor, or conflict with or violate any of the
material terms or provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement or other instrument to which the Transferor is a
party or by which it is bound; nor result in the creation or imposition of
7
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Transaction Documents); nor
violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation
applicable to the Transferor of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having jurisdiction over the
Transferor or its properties; which breach, default, conflict, Lien or violation would have
a material adverse effect on the earnings, business affairs or business prospects of the
Transferor.
(f) There are no proceedings or investigations pending or, to the Transferor’s
knowledge, threatened, before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Transferor or its properties: (i)
asserting the invalidity of this Agreement, any of the other Transaction Documents, the
Notes or the Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions contemplated by this Agreement
or any of the other Transaction Documents or (iii) seeking any determination or ruling that
might materially and adversely affect the performance by the Transferor of its obligations
under, or the validity or enforceability of, this Agreement, any of the other Transaction
Documents, the Receivables, the Notes or the Certificates.
Section 2.10. Liability of Certificateholders. The Certificateholders shall be
entitled to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State of Delaware.
8
ARTICLE THREE
CERTIFICATES
Section 3.01. Initial Ownership. The Owner as the holder of the Ownership Interest
Certificate, and each Transferor, as the holder of a Transferor Certificate, (i) shall be the only
beneficial owners of the Trust and (ii) shall be bound by the provisions of this Trust Agreement.
Section 3.02. Form of Certificates.
(a) The Ownership Interest Certificate shall be issued in registered form in substantially the
form attached hereto as Exhibit A and initially registered as provided in Annex 1 to Exhibit A. A
Transferor Certificate shall be issued in registered form in substantially the form attached hereto
as Exhibit B and initially registered as provided in Annex 1 to Exhibit B.
(b) The Certificates shall be executed by manual or facsimile signature of the Owner Trustee.
The Certificates bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall,
when duly authenticated pursuant to Section 3.03, be validly issued and fully paid undivided
beneficial interests in the assets of the Trust and entitled to the benefits of this Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of the Certificates or did not hold such offices at the date of
authentication and delivery of the Certificates.
Section 3.03. Authentication of Certificates. On the Closing Date, the Transferor
shall deliver to the Owner Trustee for cancellation the original Ownership Interest Certificate and
the Transferor Certificate. The Owner Trustee shall thereupon execute, authenticate and deliver
the replacement Ownership Interest Certificate and the Transferor Certificate, reflecting the
change of name of the Trust, upon the written order of the Transferor, signed by its chairman of
the board, its president, any vice president, secretary, any assistant treasurer or any authorized
signatory, without further corporate action by the Transferor. No Certificate shall be entitled to
any benefit under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form set forth in Exhibits A and
B, respectively, executed by the Owner Trustee by the manual signature of a duly authorized
signatory, and such certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated, validly issued and delivered
hereunder. Each Certificate shall be dated the date of its authentication. Upon issuance,
execution, authentication and delivery pursuant to the terms hereof, the Certificateholders shall
be entitled to the benefits of this Agreement.
Section 3.04. Restrictions on Transfer. Except to the extent set forth in Section
2.07(c) of the Transfer and Servicing Agreement, to the fullest extent permitted by applicable law,
the Certificates (or any interest therein) may not be sold, transferred, assigned, participated,
pledged or otherwise disposed of to any Person; provided, however, subject to Section 3.06, a
Certificate (or any interest therein) may be sold, transferred, assigned, participated, pledged or
otherwise disposed of if the transferor thereof has provided the Owner Trustee and the Indenture
Trustee with a Tax Opinion relating to such sale, transfer, assignment, participation, pledge or
other
disposition. The Transferor Certificates may not be purchased by or transferred to any
“employee benefit plan” within the meaning of Section 3(3) of ERISA (whether or not subject to
ERISA, and including foreign or government plans) or any “plan” described in Section 4975(e)(1) of
the Code, or any entity whose underlying assets include “plan assets” of any of the foregoing by
reason of a plan’s investment in such entity.
9
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate. If (i) a mutilated
Certificate shall be surrendered to the Owner Trustee, or if the Owner Trustee shall receive
evidence to its satisfaction of the destruction, loss or theft of a Certificate and (ii) there
shall be delivered to the Owner Trustee (as such and in its individual capacity) such security or
indemnity as may be required by it to save it harmless, then the Owner Trustee on behalf of the
Trust shall execute and the Owner Trustee shall authenticate and deliver, in exchange for or in
lieu of the mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under this Section, the Owner
Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge
or expense that may be imposed in connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.06. Issuance of New Transferor Certificates.
(a) Taken together, the Transferor Certificates shall represent an undivided beneficial
interest in the Trust Assets, subject to the Lien of the Indenture Trustee as provided in the
Indenture, including the right to receive Collections with respect to the Receivables and other
amounts at the times and in the amounts specified in the Master Indenture and any Indenture
Supplement to be paid to the Transferor on behalf of all holders of the Transferor Certificates.
(b) At any time the Transferor may surrender its Transferor Certificate to the Owner Trustee
in exchange for a newly issued Transferor Certificate and a second certificate (a “Supplemental
Certificate”), the form and terms of which shall be defined in a supplement (a “Transferor
Certificate Supplement”) to this Agreement (which Transferor Certificate Supplement shall be
subject to Section 11.01 to the extent that it amends any of the terms of this Agreement) to be
delivered to or upon the order of the Transferor. The issuance of any such Supplemental
Certificate shall be subject to satisfaction of the following conditions:
(i) on or before the fifth day immediately preceding the Transferor Certificate
surrender and exchange, the Transferor shall have given the Owner Trustee, the Servicer, the
Indenture Trustee and each Rating Agency notice (unless such notice requirement is otherwise
waived) of such Transferor Certificate surrender and exchange;
(ii) the Transferor shall have delivered to the Owner Trustee and the Indenture Trustee
any related Transferor Certificate Supplement in form satisfactory to the Owner Trustee and
the Indenture Trustee, executed by each party hereto;
(iii) the Rating Agency Condition shall have been satisfied with respect to such
Transferor Certificate surrender and exchange;
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(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 and that all other
conditions to the issuance of such Supplemental Certificate have been satisfied;
(v) the issuance of such Supplemental Certificate is exempt from registration under the
Securities Act;
(vi) 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
(vii) the aggregate amount of Principal Receivables as of the date of such surrender
and exchange shall be greater than the Required Minimum Principal Balance as of the date of
such surrender and exchange after giving effect to such surrender and exchange.
Any Supplemental Certificate held by any Person at any time after the date of its initial
issuance may be transferred or exchanged only upon the delivery to the Owner Trustee and Indenture
Trustee of a Tax Opinion dated as of the date of such transfer or exchange, as the case may be,
with respect to such transfer or exchange.
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Owner and Transferor with Respect to Certain Matters.
With respect to the following matters, unless otherwise instructed by the Transferor, the Trust
shall not take action unless at least 30 days before the taking of such action the Owner Trustee
shall have notified the Transferor in writing of:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of the Receivables) and the settlement of any
action, claim or lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of the Receivables brought by the Trust);
(b) the election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust Statute);
(c) the amendment of the Master Indenture by a supplemental indenture or otherwise in
circumstances where the consent of any Noteholder is required;
(d) the amendment of the Master Indenture by a supplemental indenture or any other
Transaction Document to which the Trust is a party in circumstances where the consent of any
Noteholder is not required and such amendment materially adversely affects the interest of
the Certificateholders;
(e) the amendment, change or modification of the Administration Agreement, except to
cure any ambiguity or to amend or supplement any provision in a manner or add any provision
that would not materially adversely affect the interests of the Certificateholders; or
(f) the appointment pursuant to the Indenture of a replacement or successor Transfer
Agent and Registrar, Administrator or Indenture Trustee, or the consent to the assignment by
the Transfer Agent and Registrar, Administrator or Indenture Trustee of its obligations
under the Indenture.
Section 4.02. Restrictions on Power.
(a) The Owner Trustee shall not be required to take or refrain from taking any action if such
action or inaction would be contrary to any obligation of the Trust or the Owner Trustee under any
of the Transaction Documents or would be contrary to Section 2.03.
(b) The Owner Trustee shall have no power to create, assume or incur indebtedness or other
liabilities in the name of the Trust other than as contemplated in this Agreement, the Transfer and
Servicing Agreement and the Indenture.
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ARTICLE FIVE
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority. The Owner Trustee shall administer the Trust in the
interest of the Certificateholders, subject to the lien of the Indenture in accordance with this
Agreement. Each of the Trust and the Owner Trustee in the name and on behalf of the Trust shall
have power and authority, and is hereby authorized and empowered, to execute and deliver the
Transaction Documents to which the Trust is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Transaction Documents to which the Trust is to be
a party, or any amendment thereto or other agreement, in each case in such form as the Transferor
shall approve as evidenced conclusively by the Owner Trustee’s execution thereof and the
Transferor’s execution of the related documents. In addition to the foregoing, the Owner Trustee
in the name and on behalf of the Trust shall also have power and authority and is hereby authorized
and empowered, but shall not be obligated, to take all actions required of the Trust pursuant to
the Transaction Documents. The Owner Trustee in the name and on behalf of the Trust shall also
have power and authority and is hereby authorized and empowered from time to time to take such
action as the Transferor or the Administrator directs in writing with respect to the Transaction
Documents.
Section 5.02. General Duties. Subject to Section 2.03, it shall be the duty of the
Owner Trustee to discharge (or cause to be discharged) all of its responsibilities pursuant to the
terms of this Agreement and to administer the Trust in the interest of the Transferor, subject to
the Transaction Documents and in accordance with the provisions of this Agreement. Notwithstanding
the foregoing, the Owner Trustee shall be deemed to have discharged (or caused to be discharged)
its duties and responsibilities hereunder and under the other Transaction Documents to the extent
the Administrator has agreed in the Administration Agreement or another Transaction Document to
perform any act or to discharge any duty of the Owner Trustee or the Trust under any Transaction
Document, and the Owner Trustee shall not be liable for the default or failure of the Administrator
to carry out its obligations thereunder.
Section 5.03. Action Upon Instruction.
(a) The Owner Trustee shall not be required to take any action hereunder or under any other
Transaction Document if the Owner Trustee shall have reasonably determined, or shall have been
advised by counsel, that such action is likely to result in liability on the part of the Owner
Trustee or is contrary to the terms of any Transaction Document or is otherwise contrary to law.
(b) Subject to Article Four, whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of any Transaction Document, the
Owner Trustee shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Transferor requesting instruction as to the course of action to be adopted,
and to the extent the Owner Trustee acts or refrains from acting in good faith in accordance with
any such instruction of the Transferor received, the Owner Trustee shall not be liable on account
of such action or inaction to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action, not in violation of
the Transaction Documents, as it shall deem to be in the best interest of the Certificateholders,
and shall have no personal liability to any Person for such action or inaction.
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(c) Subject to Article Four, the event that the Owner Trustee is unsure as to the application
of any provision of any Transaction Document or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate
under the circumstances) to the Transferor requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction within ten days of
such notice (or within such shorter period of time as reasonably may be specified in such notice or
may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not in violation of the Transaction Documents, as it shall deem to be in
the best interests of the Certificateholders, and shall have no liability to any Person for such
action or inaction.
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions. The
Owner Trustee shall not have any duty or obligation to manage, make any payment with respect to,
register, record, sell, dispose of, or otherwise deal with the Trust or the Trust Assets, or to
otherwise take or refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Trust is a party, except as expressly provided by the
terms of this Agreement or in any document or written instruction received by the Owner Trustee
pursuant to Section 5.03; and no implied duties or obligations shall be read into any Transaction
Document against the Owner Trustee. The Owner Trustee shall have no responsibility for any filing
or recording, including filing any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security interest or lien granted to
it or the Trust hereunder or to prepare or file any Commission filing for the Trust or to record
any Transaction Document. The Owner Trustee in its individual capacity nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be necessary to discharge any
Liens (other than the Lien of the Indenture) on any part of the Trust Assets that result from
actions by, or claims against, the Owner Trustee in its individual capacity that are not related to
the ownership or the administration of the Trust Assets or the transactions contemplated by the
Transaction Documents.
Section 5.05. No Action Except under Specified Documents or Instructions. The Owner
Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the
Trust Assets except in accordance with (i) the powers granted to and the authority conferred upon
the Owner Trustee pursuant to this Agreement, (ii) the Transaction Documents or (iii) any document
or instruction delivered to the Owner Trustee pursuant to Section 5.03.
Section 5.06. Restrictions. The Owner Trustee shall not take any action (i) that
would violate the purposes of the Trust set forth in Section 2.03 or (ii) that, to the actual
knowledge of
the Owner Trustee, would result in the Trust becoming taxable as a corporation for federal
income tax purposes. The Transferor shall not direct the Owner Trustee to take action that would
violate the provisions of this Section.
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ARTICLE SIX
CONCERNING THE OWNER TRUSTEE
Section 6.01. Acceptance of Trusts and Duties. The Owner Trustee accepts the trusts
hereby created and agrees to perform its duties hereunder with respect to such trusts, but only
upon the terms of this Agreement. The Owner Trustee also agrees to disburse all monies actually
received by it constituting part of the Trust Assets upon the terms of this Agreement. The Owner
Trustee shall not be answerable or accountable under any Transaction Document under any
circumstances, except (i) for its own willful misconduct, bad faith or gross negligence in the
performance of its duties or the omission to perform any such duties or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 6.03 expressly made by the Owner
Trustee in its individual capacity. In particular, but not by way of limitation (and subject to
the exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in good faith
by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in accordance with the instructions of the Administrator or the
Transferor;
(c) no provision of this Agreement or any other Transaction Document shall require the
Owner Trustee to expend or risk its own funds or otherwise incur any financial liability in
the exercise or performance of any of its duties, rights or powers hereunder or under any
other Transaction Document, if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or arising under any of the Transaction Documents, including the principal of and
interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Agreement, the due execution hereof by the Transferor or the form,
character, genuineness, sufficiency, value or validity of any of the Trust Assets, the
Transaction Documents, the Notes or the Certificates other than the genuineness of the Owner
Trustee’s signature on the Certificates and on the certificate of authentication on the
Certificates, and the Owner Trustee shall in no event assume or incur any personal
liability, duty or obligation to any Noteholder or to the Owner or any other Person, other
than as expressly provided for herein or expressly agreed to in the other Transaction
Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of the
Transferor, the Servicer, the Administrator or the Indenture Trustee or any other Person
under any of the Transaction Documents or otherwise, and the Owner Trustee shall have no
obligation or personal liability to perform the obligations of the Trust under the
Transaction Documents, including those that are required to be performed by the
Administrator under the Administration Agreement, the Indenture Trustee under the Indenture
or the Servicer under the Transfer and Servicing Agreement;
15
(g) the Owner Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this Agreement or any other Transaction
Document, at the request, order or direction of the Transferor, unless the Transferor has
offered to the Owner Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Owner Trustee therein or thereby; the
right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or
any other Transaction Document shall not be construed as a duty, and the Owner Trustee shall
not be answerable or liable to any Person for any such act other than liability to the Trust
and the beneficial owners of the Trust for its own gross negligence or willful misconduct in
the performance of any such act or the omission to perform any such act; and
(h) notwithstanding anything contained herein to the contrary, the Owner Trustee shall
not be required to take any action in any jurisdiction other than in the State of Delaware
if the taking of such action will (i) require the registration with, licensing by or the
taking of any other similar action in respect of, any State or other governmental authority
or agency of any jurisdiction other than the State of Delaware by or with respect to the
Owner Trustee, (ii) result in any fee, tax or other governmental charge under the laws of
any jurisdiction or any political subdivision thereof in existence on the date hereof other
than the State of Delaware becoming payable by the Owner Trustee or (iii) subject the Owner
Trustee to personal jurisdiction in any jurisdiction other than the State of Delaware for
causes of action arising from acts unrelated to the consummation of the transactions by the
Owner Trustee contemplated hereby; the Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be an expense of the Transferor) to determine whether any action
required to be taken pursuant to the Agreement results in the consequences described in
clauses (i), (ii) and (iii) of this subsection; and in the event that said counsel advises
the Owner Trustee that such action will result in such consequences, the Transferor shall
appoint an additional trustee pursuant to Section 9.05 to proceed with such action.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to the
Transferor and the Indenture Trustee, promptly upon written request therefor, duplicates or copies
of all reports, notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee under the Transaction Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby represents and
warrants to the Transferor that:
(a) it is a Delaware banking corporation duly organized and validly existing in good
standing under the laws of the State of Delaware and has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
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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 the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter documents or
by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party
or by which any of its properties may be bound or result in the imposition of any Lien,
charge or encumbrance on the Trust Assets resulting from actions by or claims against the
Owner Trustee individually that are related to this Agreement or the other Transaction
Documents; and
(d) each of this Agreement and each other Transaction Document to which it is a party
has been duly executed and delivered by it and constitutes the legal, valid and binding
agreement of it, enforceable against the Owner Trustee in accordance with its terms, except
as enforceability may be limited by bankruptcy, liquidation, insolvency, reorganization or
other similar laws affecting the enforcement of creditors’ rights in general and by general
principles of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
Section 6.04. Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond, or
other document or paper believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any Person as conclusive evidence that such resolution has
been duly adopted by such body and that the same is in full force and effect. As to any fact or
matter the method of the determination of which is not specifically prescribed herein, the Owner
Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officer of an appropriate Person, as to such fact
or matter, and such certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the performance of its
duties and obligations under this Agreement or the other Transaction Documents, the Owner Trustee
(i) may act directly or through its agents or attorneys pursuant to agreements entered into with
any of them, and the Owner Trustee shall not be liable for the conduct or misconduct of such agents
or attorneys if such agents or attorneys shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other skilled Persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the written opinion or
written advice of any such counsel, accountants or other such Persons.
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Section 6.05. Not Acting in Individual Capacity. Except as expressly provided in this
Article, in accepting the trusts hereby created, Wilmington Trust Company acts solely as Owner
Trustee hereunder and not in its individual capacity, and all Persons having any claim against the
Owner Trustee by reason of the transactions contemplated by any Transaction Document shall look
only to the Trust Assets for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or Receivables. The
statements contained herein and in the Certificates, Notes and other Transaction Documents (other
than the genuineness of the signature and authentication (as applicable) of the Owner Trustee on
the Certificates and its representations and warranties in Section 6.03) shall be taken as the
statements of the Transferor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this
Agreement, any other Transaction Document or the Certificates (other than the genuineness of the
signature and authentication (as applicable) of the Owner Trustee on the Certificates and its
representations and warranties in Section 6.03), the Notes or related documents. The Owner Trustee
shall at no time have any responsibility or liability for or with respect to the legality, validity
and enforceability of the Receivables or the perfection and priority of any security interest in
the Receivables or the maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Trust Assets or its ability to generate the payments to be distributed to
the Noteholders under the Indenture, including the existence, condition and ownership of the
Receivables, the existence and contents of the Receivables on any computer or other record thereof,
the validity of the assignment of the Receivables to the Trust or of any intervening assignment,
the completeness of the Receivables; the performance or enforcement of the Receivables, the
compliance by the Transferor with any warranty or representation made under any Transaction
Document or in any related document or the accuracy of any such warranty or representation or any
action of the Administrator, the Servicer or the Indenture Trustee taken in the name of the Owner
Trustee.
Section 6.07. Owner Trustee May Own Notes. The Owner Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may deal with the Transferor, the
Administrator, the Servicer and the Indenture Trustee in banking transactions with the same rights
as it would have if it were not Owner Trustee.
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ARTICLE SEVEN
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee’s Fees and Expenses. The Owner Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed upon before the
date hereof among the Transferor, the Servicer and the Owner Trustee, and the Owner Trustee shall
be entitled to be reimbursed by the Transferor (and if not by the Transferor, by the Servicer) for
its other reasonable expenses hereunder, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner Trustee may employ
in connection with the exercise and performance of its rights and its duties hereunder and under
the Transaction Documents; provided, however, that the Owner Trustee shall have no recourse to the
assets pledged under the Indenture with respect to any payments under this Section and the Owner
Trustee’s right to enforce such obligation shall be subject to the provisions of 11.09.
Section 7.02. Indemnification. To the fullest extent permitted by law, the Transferor
(and if not the Transferor, the Servicer) shall indemnify, defend and hold harmless the Indemnified
Parties from and against Expenses which may at any time be imposed on, incurred by, or asserted
against the Owner Trustee or any Indemnified Party in any way relating to or arising out of the
Transaction Documents, the Trust Assets, the acceptance and administration of the Trust Assets or
any action or inaction of the Owner Trustee; provided that the Transferor shall not be liable for
or required to indemnify any Indemnified Party from and against Expenses arising or resulting from
any of the matters described in the third sentence of Section 6.01, Expenses for which
indemnification is actually received under other Transaction Documents or income taxes or any fees
received by the Owner Trustee; provided further that the Transferor shall not be liable for or
required to indemnify an Indemnified Party from and against expenses arising or resulting from (i)
the Indemnified Party’s own willful misconduct, bad faith or gross negligence, (ii) income taxes or
(iii) the inaccuracy of any representation or warranty contained in Section 6.03. No Indemnified
Party shall have any recourse to the assets pledged under the Indenture with respect to any
Expenses payable by the Transferor pursuant to this Section. An Indemnified Party’s right to
enforce such obligation shall be subject to the provisions of Section 11.09. The indemnities
contained in this Section shall survive the resignation and termination of the Owner Trustee or the
termination of this Agreement. In any event of claim, action or proceeding for which indemnity
will be sought pursuant to this Section, the Indemnified Party’s choice of legal counsel shall be
subject to approval of the Transferor, which approval shall not be unreasonably withheld.
Section 7.03. Payments to the Owner Trustee. Any amounts paid to an Indemnified Party
pursuant to this Article shall not be construed to be a part of the Trust Assets.
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ARTICLE EIGHT
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement.
(a) The Trust shall dissolve upon the earlier of (i) at the option of the Transferor (written
notice of which shall be provided to the Owner Trustee), the Trust Termination Date and (ii)
dissolution of the Trust in accordance with applicable law. After satisfaction of liabilities of
the Trust as provided by applicable law, any money or other property held as part of the Trust
Assets following such distribution shall be distributed to the Transferor. The bankruptcy,
liquidation, dissolution, termination, death or incapacity of the Transferor shall not (A) operate
to terminate this Agreement or annul, dissolve or terminate the Trust, (B) entitle the Transferor’s
legal representatives or heirs to claim an accounting or to take any action or proceeding in any
court for a partition or winding up of all or any part of the Trust or Trust Assets or (C)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.01(a), the Transferor shall not be entitled to revoke,
dissolve or terminate the Trust. The Owner shall not be entitled to revoke, dissolve or terminate
the Trust.
(c) Upon completion of the winding up of the Trust in accordance with the Statutory Trust
Statute, the Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Statutory Trust Statute and thereupon the Trust and this Agreement (other than
Articles Six and Seven and Section 11.09) shall terminate.
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ARTICLE NINE
SUCCESSOR AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner Trustee shall at
all times (i) be a Person satisfying the provisions of Section 3807(a) of the Statutory Trust
Statute; (ii) be authorized to exercise trust powers; (iii) have, or have a corporate parent that
has, a combined capital and surplus of at least $50,000,000; (iv) be subject to supervision or
examination by federal or State authorities; and (v) have (or have a parent which has) a rating of
at least Baa3 by Moody’s, at least BBB- by Standard & Poor’s and, if rated by Fitch, at least BBB-
by Fitch, or otherwise be acceptable to each Rating Agency. If such Person shall publish reports
of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 9.02.
Section 9.02. Resignation or Removal of Owner Trustee. The Owner Trustee may at any
time resign and be discharged from the trusts hereby created by giving written notice thereof to
the Transferor; provided, however, that such resignation and discharge shall only be effective upon
the appointment of a successor Owner Trustee. Upon receiving such notice of resignation, the
Transferor shall promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy to the
successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of resignation, the resigning
Owner Trustee at the expense of the Transferor may petition any court of competent jurisdiction for
the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions
of Section 9.01 and shall fail to resign after written request therefor by the Transferor, or if at
any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Transferor may, but shall not be
required to, remove the Owner Trustee. If the Transferor shall remove the Owner Trustee under the
authority of the immediately preceding sentence, the Transferor shall promptly (i) appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee and
(ii) pay all amounts owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee
pursuant to any of the provisions of this Section shall not become effective until acceptance of
appointment by the successor Owner Trustee pursuant to Section 9.03 and, in the case of removal,
payment of all fees and expenses owed to the outgoing Owner Trustee. The Transferor shall provide
notice of such resignation or removal of the Owner Trustee to each Rating Agency.
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Section 9.03. Successor Owner Trustee. Any successor Owner Trustee appointed pursuant
to Section 9.02 shall execute, acknowledge and deliver to the Transferor and to its predecessor
Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become effective and such successor
Owner Trustee, without any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor under this Agreement, with like effect as
if originally named as Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees
and expenses deliver to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement; and the Transferor and the predecessor Owner Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this Section unless at the
time of such acceptance such successor Owner Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section, the
Transferor shall mail notice of such acceptance of appointment including the name of such successor
Owner Trustee to the Transferor, the Indenture Trustee, the Noteholders and each Rating Agency. If
the Transferor shall fail to mail such notice within ten days after acceptance of appointment by
the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at
the expense of the Transferor.
Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section, such
successor Owner Trustee shall file an amendment to the Certificate of Trust with the Secretary of
State identifying the name and principal place of business of such successor Owner Trustee in the
State of Delaware.
Section 9.04. Merger or Consolidation of Owner Trustee. Notwithstanding anything
herein to the contrary, any Person into which the Owner Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger, conversion or consolidation
to which the Owner Trustee shall be a party, or any Person succeeding to all or substantially all
of the corporate trust business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder (provided that such Person shall meet the eligibility requirements set forth in Section
9.01), without the execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided further that (i) the Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency and (ii) the Owner Trustee shall file any necessary amendments
to the Certificate of Trust with the Secretary of State.
Section 9.05. Appointment of Co-Trustee or Separate Trustee. Notwithstanding any
other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements
of any jurisdiction in which any part of the Trust Assets may at the time be located, the
Transferor and the Owner Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons approved by each of the Transferor and the Owner
Trustee to act as co-trustee, jointly with the Owner Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Assets, and to vest in such Person, in such
22
capacity, such title to the Trust, or any part thereof, and, subject to the other provisions
of this Section, such powers, duties, obligations, rights and trusts as the Transferor and the
Owner Trustee may consider necessary or desirable. If the Transferor shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the Owner Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor trustee pursuant to
Section 9.01, and no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and
act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties, and obligations
(including the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by reason of any act or
omission of any other trustee under this Agreement; and
(iii) the Transferor and the Owner Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be deemed to have been
given to each of the then separate trustees and co-trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording protection to, the
Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a copy thereof given
to the Transferor.
Any separate trustee or co-trustee may at any time appoint the Owner Trustee, its agent or
attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be exercised by the Owner
Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
23
ARTICLE TEN
TAX MATTERS
Section 10.01. Tax and Accounting Characterization. It is the intent of the parties
hereto that the Trust not constitute a separate entity for federal income tax or State income or
franchise tax (where such franchise taxes are based solely upon or measured by net income)
purposes. It is the intent of the Transferor, the Noteholders and the Certificateholders that the
Offered Notes, and to the extent Class C Notes are beneficially owned by a Person other than the
Transferor, the Class C Notes, be treated as indebtedness of the Transferor secured by the Trust
Assets and the payments on the Receivables for federal income tax and State income and franchise
tax purposes. If there are multiple Certificateholders at any point in time for federal, State and
local income and franchise tax purposes, it is the intention of the parties that the Trust qualify
as a partnership during the period there are multiple Certificateholders, with the assets of the
partnership being the Owner Trust Assets and the partners of the partnership being the
Certificateholders and the Notes being debt of the partnership. The parties agree that the Trust
shall not file or cause to be filed annual returns, reports or other forms and will treat the Trust
in a manner consistent with the characterization that the Trust is not a separate entity for tax
purposes unless there are multiple Certificateholders at the same time or, unless there are future
changes in the federal or State income or franchise tax (where such franchise taxes are based
solely upon or measured by net income) laws, whereby existing trusts with a single
Certificateholder are treated as a separate entity for purposes of the aforementioned taxes.
Section 10.02. Signature on Returns; Tax Matters Partner.
(a) In the event that the Trust shall be required to file federal or other income tax returns
as a partnership, such returns shall be signed by an authorized signatory for the Transferor or
such other Person as shall be required by law to sign such returns of the Trust.
(b) By acceptance of its beneficial interest in a Certificate, each Certificateholder agrees
that in the event that the Trust is classified as a partnership for federal income tax purposes,
the Transferor shall be the “tax matters partner” of the Trust pursuant to the Code so long as the
Transferor holds any Certificate.
Section 10.03. Tax Reporting. Unless otherwise required by appropriate tax
authorities, the Trust shall not file or cause to be filed annual or other income or franchise tax
returns and shall not be required to obtain a taxpayer identification number.
24
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Supplements and Amendments.
(a) This Agreement may be amended from time to time by a written amendment duly executed and
delivered by the Transferor and the Owner Trustee, with the written consent of the Indenture
Trustee, but without the consent of any of the Noteholders, and upon satisfaction of the Rating
Agency Condition, to cure any ambiguity, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or modifying in any manner the rights of the Noteholders; provided,
however, that any such amendment will not (i) in the good faith judgment of the parties thereto,
materially adversely affect the interest of any Noteholder and (ii) as evidenced by an Opinion of
Counsel addressed and delivered to the Owner Trustee and the Indenture Trustee, cause the Trust to
be classified as an association (or a publicly traded partnership) taxable as a corporation for
federal income tax purposes; provided, further, that Section 2.03 may be amended only with the
consent of the Holders of Notes evidencing not less than a majority of the Outstanding 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 to avoid the imposition of State or local income or
franchise taxes imposed on the Trust’s property or its income; provided, however, that (i) the
Transferor delivers to the Indenture Trustee and the Owner Trustee an Officer’s Certificate to the
effect that the proposed amendments meet the requirements set forth in this Section, (ii) the
Rating Agency Condition shall have been satisfied with respect to such amendment and (iii) such
amendment does not affect the rights, benefits, protections, privileges, immunities, duties or
obligations of the Owner Trustee hereunder. The amendments which the Transferor may make without
the consent of Noteholders pursuant to the preceding sentence may include, without limitation, the
addition of a sale of Receivables.
(b) This Agreement may also be amended from time to time by a written amendment duly executed
and delivered by the Transferor and the Owner Trustee, with the consent of the Indenture Trustee
and the Holders of Notes evidencing not less than a majority of the Outstanding Notes and upon
satisfaction of the Rating Agency Condition for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner
the rights of the Noteholders; provided, however, that without the consent of all Noteholders, no
such amendment shall (i) increase or reduce in any manner the amount of, or accelerate or delay the
timing of distributions that are required to be made for the benefit of the Noteholders or (ii)
reduce the aforesaid percentage of the Outstanding Notes of all Series, the Holders of which are
required to consent to any such amendment; provided further, that such amendment will not, as
evidenced by an Opinion of Counsel addressed and delivered to the Owner Trustee and the Indenture
Trustee, cause the Trust to be classified as an association (or a publicly traded partnership)
taxable as a corporation for federal income tax purposes.
25
(c) Promptly after the execution of any such amendment or consent, the Transferor shall
furnish written notification of the substance of such amendment or consent to the Indenture Trustee
and each Rating Agency. It shall not be necessary for the consent of the Noteholders pursuant to
this Section to approve the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof.
(d) Promptly after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State.
(e) The Owner Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Officer’s Certificate of the Transferor to the effect that the conditions to amendment
have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into, and unless
it has consented thereto in writing shall not be bound by, any amendment which affects the Owner
Trustee’s own rights, duties, benefits, protections, privileges or immunities (as such or in its
individual capacity) under this Agreement or otherwise.
Section 11.02. No Legal Title to Trust Assets in Transferor. The Transferor shall not
have legal title to any part of the Trust Assets. No transfer, by operation of law or otherwise,
of any right, title, and interest of the Transferor to and in its undivided beneficial interest in
the Trust Assets shall operate to terminate this Agreement or annul, dissolve or terminate the
Trust or entitle any transferee to an accounting or to the transfer to it of legal title to any
part of the Trust Assets.
Section 11.03. Limitations on Rights of Others. The provisions of this Agreement are
solely for the benefit of the Owner Trustee, the other Indemnified Parties, the Transferor, the
holder of any Certificate and, to the extent expressly provided herein, the Indenture Trustee and
the Noteholders, and nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the Trust Assets or under
or in respect of this Agreement or any covenants, conditions or provisions contained herein.
Section 11.04. Notices. Unless otherwise expressly specified or permitted by the
terms hereof, all demands, notices, instructions, directions and communications under this
Agreement shall be in writing and shall be deemed to have been duly given if personally delivered
at, mailed by registered mail, return receipt requested or sent by facsimile transmission (except
that notice to the Owner Trustee, the Transferor or Indenture Trustee shall be deemed given only
upon actual receipt by the Owner Trustee, the Transferor or Indenture Trustee), if to (i) the Owner
Trustee, addressed to the Corporate Trust Office; (ii) the Indenture Trustee, addressed to Xxxxx
Fargo Bank, National Association, 000 Xxxxxxxxx Xxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Asset-Backed Securities (facsimile no. (000) 000-0000); or (iii) the Transferor,
addressed to Nordstrom Credit Card Receivables II LLC, 00000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Legal Department (facsimile no. (000) 000-0000); or as to each party, at
such other address or facsimile number as shall be designated by such party in a written notice to
each other party.
26
Section 11.05. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held invalid or
unenforceable,
then such covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions and terms of this Agreement and shall in no way affect
the validity or enforceability of the other covenants, agreements, provisions and terms of this
Agreement or of the Certificates or the rights of the Certificateholders thereof.
Section 11.06. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an original, but all
of which together shall constitute one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements contained herein
shall be binding upon, and inure to the benefit of, the Transferor, the Owner Trustee and each
Certificateholder and their respective successors and permitted assigns, all to the extent as
herein provided. Any request notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of the Transferor or such
Certificateholder.
Section 11.08. Third-Party Beneficiaries. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and permitted assigns.
Except as otherwise expressly provided in this Agreement, no other Person will have any right or
obligation hereunder.
Section 11.09. Nonpetition Covenants. Notwithstanding any prior termination of the
Trust or this Agreement, the Owner Trustee, individually or in its capacity as Owner Trustee, and
the Transferor shall not, prior to the date which is one year and one day after the termination of
the Trust or this Agreement, acquiesce, petition or otherwise invoke or cause the Trust to invoke
the process of any court or Governmental Authority for the purpose of commencing or sustaining a
case against the Trust under any federal or State bankruptcy, insolvency or similar law or
appointing a receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Trust or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Trust.
Section 11.10. No Recourse. Each Person holding or owning a Certificate, by accepting
the Certificates, acknowledges that the Certificates do not represent interest in or obligations of
the Servicer, the Owner Trustee, the Indenture Trustee or any Affiliate thereof (other than the
Trust), and no recourse may be had against such parties or their assets, or against the assets
pledged under the Indenture, except as expressly agreed by such party in the Transaction Documents.
Section 11.11. Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF 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.
27
Section 11.13. Acceptance of Terms of Agreement. The receipt and acceptance of the
Ownership Interest Certificate by the Owner and the Transferor Certificate by the Transferor,
without any signature or further manifestation of assent, shall constitute the unconditional
acceptance by the Owner and the Transferor, respectively, of all the terms and provisions of this
Agreement, and shall constitute the agreement of the Trust that the terms and provisions of this
Agreement shall be binding, operative and effective as among the Trust, the Owner and the
Transferor.
Section 11.14. Merger and Integration. Except as specifically stated otherwise
herein, this Agreement sets forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written and oral, are superseded by this Agreement.
Section 11.15. Certificates Nonassessable and Fully Paid. Certificateholders shall
not be personally liable for obligations of the Issuer. The interests represented by the
Certificates shall be nonassessable for any losses or expenses of the Issuer or for any reason
whatsoever, and, upon the authentication thereof by the Owner Trustee pursuant to Section 3.03,
3.04, 3.05 or 3.06, the Certificates are and shall be deemed fully paid.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers hereunto duly authorized, as of the day and year first above written.
WILMINGTON TRUST COMPANY, as Owner Trustee |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Xxxxx X. Xxxxxx | ||||
Vice President | ||||
NORDSTROM CREDIT CARD RECEIVABLES II LLC, as Transferor |
||||
By: | /s/Xxxx X. Xxxxxxx | |||
Xxxx X. Xxxxxxx | ||||
Treasurers | ||||
29
EXHIBIT A
FORM OF OWNERSHIP INTEREST CERTIFICATE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (OR ANY INTEREST HEREIN) MAY
NOT BE TRANSFERRED TO ANY PERSON EXCEPT IN ACCORDANCE WITH THE TRUST AGREEMENT.
NORDSTROM CREDIT CARD MASTER NOTE TRUST II
OWNER CERTIFICATE
OWNER CERTIFICATE
R-1
(This Certificate does not represent an interest in or obligation of Nordstrom Credit Card
Receivables II LLC or any of its affiliates, except to the extent described below.)
This certifies that Nordstrom Credit Card Receivables II LLC (formerly known as Nordstrom
Private Label Receivables LLC) is the registered Owner of the Nordstrom Credit Card Master Note
Trust II (formerly known as Nordstrom Private Label Master Note Trust) (the “Trust”). The Trust
was created pursuant to (i) the filing of the Certificate of Trust with the Secretary of State of
the State of Delaware and (ii) the Trust Agreement, dated as of October 16, 2001, as amended and
restated as of October 1, 2001, and as further amended and restated as of May 1, 2007 (the “Trust
Agreement”), between Nordstrom Credit Card Receivables II LLC (the “Transferor”) and Wilmington
Trust Company, as trustee (the “Owner Trustee”). Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Trust Agreement.
This Certificate is the duly authorized Certificate evidencing a beneficial ownership interest
in the Trust (the “Certificate”). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Trust Agreement, including the rights of the holder of the
Transferor Certificate to which Trust Agreement the holder by virtue of the acceptance hereof
assents and by which the holder is bound.
Notwithstanding any prior termination of the Trust Agreement, the holder, by its acceptance of
this Certificate, covenants and agrees that it shall not at any time with respect to the Trust,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the process of any court or
Governmental Authority for the purpose of commencing or sustaining a case against the Trust under
any federal or State bankruptcy, insolvency or similar law or appointing a receiver, conservator,
liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Trust or
any substantial part of its property, or ordering the winding up or liquidation of the affairs of
the Trust.
Unless the certificate of authentication hereon shall have been executed by the Owner Trustee,
by manual signature, this Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement, the Transfer and Servicing Agreement or the Indenture or be valid for any purpose.
A-1
THIS CERTIFICATE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE HOLDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly executed.
NORDSTROM CREDIT CARD MASTER NOTE TRUST II | ||||
By: | WILMINGTON TRUST COMPANY, | |||
not in its individual capacity but solely as | ||||
Owner Trustee | ||||
Dated: ___, 2007
|
By: | |||
Name: | ||||
Title: |
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust Agreement.
WILMINGTON TRUST COMPANY, | ||||
not in its individual capacity but solely | ||||
as Owner Trustee | ||||
By: | ||||
Authorized Signatory |
A-2
Annex 1
to Exhibit A
to Exhibit A
Registered Owner and address:
Nordstrom Credit Card Receivables II LLC
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tax Identification Number:
A-3
EXHIBIT B
FORM OF TRANSFEROR CERTIFICATE
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT
IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM SUCH REGISTRATION PROVISIONS.
THIS TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED, EXCHANGED OR
OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT REFERRED
TO HEREIN.
Xx. X-0 | Xxx Xxxx |
XXXXXXXXX CREDIT CARD MASTER NOTE TRUST II
TRANSFEROR CERTIFICATE
TRANSFEROR CERTIFICATE
Evidencing an interest in a trust, the corpus of which consists primarily of receivables generated
from time to time in the ordinary course of business in a portfolio of (i) private label credit
card accounts and (ii) an undivided beneficial interest in VISA® credit card accounts transferred
by Nordstrom Credit Card Receivables II LLC (formerly known as Nordstrom Private Label Receivables
LLC) (the “Transferor”).
(Not an interest in or obligation of the Transferor
or any affiliate thereof)
or any affiliate thereof)
This certifies that Nordstrom Credit Card Receivables II LLC is the registered owner of an
undivided beneficial interest in the assets of the Nordstrom Credit Card Master Note Trust II
(formerly known as Nordstrom Private Label Master Note Trust) (the “Trust”), subject to the lien of
the Notes as provided in the Amended and Restated Master Indenture, dated as of May 1, 2007 (the
“Master Indenture”), between Xxxxx Fargo Bank, National Association, as trustee (the “Indenture
Trustee”), as supplemented by the Series 0000-0 Xxxxxxxxx Supplement, dated as of May 1, 2007 (the
“Series 2007-1 Indenture Supplement,” and together with the Master Indenture, the “Indenture”),
between the Indenture Trustee and the Trust, as the same may be amended, modified or otherwise
supplemented from time to time, and the Trust, established pursuant to the Second Amended and
Restated Trust Agreement, dated as of May 1, 2007, as amended and supplemented (the “Trust
Agreement”), between the Transferor and Wilmington Trust Company, as trustee (the “Owner Trustee”).
The corpus of the Trust consists of (a) a portfolio of certain receivables (the “Receivables”)
existing in (i) private label credit card accounts and (ii) an undivided beneficial interest in
VISA® credit card accounts, which accounts are identified under the Amended and Restated Transfer
and Servicing Agreement, dated as of May 1, 2007, as amended from time to time (the “Transfer and
Servicing Agreement”), among the Transferor, Nordstrom fsb, as servicer (the “Servicer”), the
Indenture Trustee and the Trust, as issuer, from
B-1
time to time (the “Accounts”), (b) certain funds collected or to be collected from
accountholders in respect of the Receivables, (c) all funds which are from time to time on deposit
in the Collection Account, Special Funding Account and in the Series Accounts, (d) the benefits of
any Series Enhancements issued and to be issued by Series Enhancers with respect to one or more
Series of Notes and (e) all other assets and interests constituting the Trust, including
Interchange and Recoveries allocated to the Trust pursuant to the Transfer and Servicing Agreement.
Although a summary of certain provisions of the Transfer and Servicing Agreement, the Trust
Agreement and the Indenture (collectively, the “Agreements”) is set forth below, this Certificate
does not purport to summarize the Agreements and reference is made to the Agreements for
information with respect to the interests, rights, benefits, obligations, proceeds and duties
evidenced hereby and the rights, duties and obligations of the Owner Trustee. Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed thereto in the
Agreements.
This Certificate is issued under and is subject to the terms, provisions and conditions of the
Agreements, to which Agreements, as amended and supplemented from time to time, the Transferor by
virtue of the acceptance hereof assents and is bound.
The Receivables consist of Principal Receivables which arise generally from the purchase of
merchandise and services and amounts advanced to cardholders as cash advances and Finance Charge
Receivables which arise generally from Periodic Rate Finance Charges, Late Fees and other fees and
charges with respect to the Accounts.
This Certificate is the Transferor Certificate, which represents the undivided beneficial
interest in certain assets of the Trust, subject to the lien of the Notes, including the right to
receive a portion of the Collections and other amounts at the times and in the amounts specified in
the Indenture. In addition to the Transferor Certificate, (a) Notes will be issued to investors
pursuant to the Indenture and (b) Supplemental Certificates may be issued pursuant to the Trust
Agreement.
Unless otherwise specified in an Indenture Supplement with respect to a particular Series, the
Transferor has entered into the Transfer and Servicing Agreement, and this Certificate is issued,
with the intention that, for federal, State and local income and franchise tax purposes, (a) the
Notes of each Series which are characterized as indebtedness at the time of their issuance will
qualify as indebtedness of the Transferor secured by the Receivables and (b) the Trust shall not be
treated as an association (or a publicly traded partnership) taxable as a corporation. The
Transferor by the acceptance of this Certificate, agrees to treat the Notes for federal, State and
local income and franchise tax purposes as indebtedness of the Transferor.
Subject to certain conditions and exceptions specified in the Agreements, the obligations
created by the Agreements and the Trust created thereby shall terminate upon the earlier of (a) at
the option of the Transferor, the day on which the rights of all Series of Notes to receive
payments from the Trust have terminated (the “Trust Termination Date”) or (b) dissolution of the
Trust in accordance with applicable law.
B-2
Unless the certificate of authentication hereon has been executed by or on behalf of the Owner
Trustee, by manual signature, this Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly executed.
NORDSTROM CREDIT CARD MASTER NOTE TRUST II | ||||
By: | WILMINGTON TRUST COMPANY, | |||
not in its individual capacity but solely as | ||||
Owner Trustee | ||||
By: | ||||
Name: | ||||
Title: |
Dated: ___, 2007
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate described in the Trust Agreement.
WILMINGTON TRUST COMPANY, | ||||
not in its individual capacity but solely as Owner | ||||
Trustee | ||||
By: | ||||
Authorized Signatory |
B-3
Annex 1 to
Exhibit B
Exhibit B
Registered Owner and address:
Nordstrom Credit Card Receivables II LLC
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
00000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Tax Identification Number:
C-1