EXHIBIT 4.3
EXECUTION COPY
________________________________________________________________________________
HOUSEHOLD RECEIVABLES FUNDING, INC. III,
Transferor
and
WILMINGTON TRUST COMPANY,
Owner Trustee
AMENDED AND RESTATED
TRUST AGREEMENT
amending and restating in full the
Trust Agreement dated as of September 25, 2000
Dated as of November 16, 2000
________________________________________________________________________________
TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................... 1
Section 1.01 Capitalized Terms................................................. 1
Section 1.02. Other Definitional Provisions..................................... 2
ARTICLE II ORGANIZATION.............................................................. 4
Section 2.01. Name.............................................................. 4
Section 2.02. Office............................................................ 4
Section 2.03. Purpose and Powers................................................ 4
Section 2.04. Appointment of Owner Trustee...................................... 4
Section 2.05. Initial Capital Contribution of Trust Estate...................... 4
Section 2.06. Declaration of Trust.............................................. 5
Section 2.07. Title to Trust Property........................................... 5
Section 2.08. Situs of Trust.................................................... 5
Section 2.09. Representations and Warranties of Transferor...................... 5
Section 2.10. Liability of Holders of the Certificates.......................... 6
Section 2.11. Payments and Distributions........................................ 6
ARTICLE III CERTIFICATES.............................................................. 7
Section 3.01. Initial Ownership................................................. 7
Section 3.02. Form of Certificates.............................................. 7
Section 3.03. Authentication of Certificates.................................... 7
Section 3.04. Restrictions on Transfer.......................................... 7
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.................. 7
Section 3.06. Issuance of New Transferor Certificates........................... 8
ARTICLE IV ACTIONS BY OWNER TRUSTEE.................................................. 10
Section 4.01. Prior Notice to Transferor with Respect to Certain Matters........ 10
Section 4.02. Restrictions on Power............................................. 10
ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE..................................... 11
Section 5.01. General Authority................................................. 11
Section 5.02. General Duties.................................................... 11
Section 5.03. Action Upon Instruction........................................... 11
Section 5.04. No Duties Except as Specified in this Agreement or in Instructions 12
Section 5.05. No Action Except under Specified Documents or Instructions........ 12
Section 5.06. Restrictions...................................................... 12
ARTICLE VI CONCERNING THE OWNER TRUSTEE.............................................. 13
Section 6.01 Acceptance of Trusts and Duties................................... 13
Section 6.02. Furnishing of Documents........................................... 14
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Section 6.03. Representations and Warranties.................................... 14
Section 6.04. Reliance; Advice of Counsel....................................... 14
Section 6.05. Not Acting in Individual Capacity................................. 15
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or Receivables... 15
Section 6.07. Owner Trustee May Own Notes....................................... 15
ARTICLE VII COMPENSATION OF OWNER TRUSTEE............................................. 16
Section 7.01. Owner Trustee's Fees and Expenses................................. 16
Section 7.02. Indemnification................................................... 16
Section 7.03. Payments to the Owner Trustee..................................... 16
ARTICLE VIII TERMINATION OF TRUST AGREEMENT............................................ 17
Section 8.01. Termination of Trust Agreement.................................... 17
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES.................... 18
Section 9.01. Eligibility Requirements for Owner Trustee........................ 18
Section 9.02. Resignation or Removal of Owner Trustee........................... 18
Section 9.03. Successor Owner Trustee........................................... 18
Section 9.04. Merger or Consolidation of Owner Trustee.......................... 19
Section 9.05. Appointment of Co-Trustee or Separate Trustee..................... 19
ARTICLE X MISCELLANEOUS............................................................. 21
Section 10.01. Supplements and Amendments........................................ 21
Section 10.02. No Legal Title to Trust Estate in Transferor...................... 22
Section 10.03. Limitations on Rights of Others................................... 22
Section 10.04. Notices.......................................................... 22
Section 10.05. Severability...................................................... 22
Section 10.06. Separate Counterparts............................................. 22
Section 10.07. Successors and Assigns............................................ 22
Section 10.08. Nonpetition Covenants............................................. 23
Section 10.09. No Recourse....................................................... 23
Section 10.10. Headings.......................................................... 23
Section 10.11. GOVERNING LAW..................................................... 23
Section 10.12. Transferor Payment Obligation..................................... 23
Section 10.13. Acceptance of Terms of Agreement.................................. 23
Section 10.14. Integration of Documents.......................................... 23
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TABLE OF CONTENTS (cont'd)
EXHIBITS
EXHIBIT A FORM OF TRANSFEROR CERTIFICATE........................ A-1
iii
This HOUSEHOLD CREDIT CARD MASTER NOTE TRUST I AMENDED AND RESTATED TRUST
AGREEMENT, dated as of November 16, 2000, between HOUSEHOLD RECEIVABLES FUNDING,
INC. III, a Delaware corporation, as Transferor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Owner Trustee amends and restates in full the
Trust Agreement, dated as of September 25, 2000, between the Transferor and the
Owner Trustee.
ARTICLE I
DEFINITIONS
Section 1.01 Capitalized Terms. For all purposes of this Agreement, the
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following terms shall have the meanings set forth below:
"Administration Agreement" shall mean the Amended and Restated
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Administration Agreement, dated as of November 16, 2000, between the Owner
Trustee and Household Finance Corporation, as Administrator.
"Administrator" shall mean Household Finance Corporation, or any successor
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Administrator under the Administration Agreement.
"Agreement" shall mean this Amended and Restated Trust Agreement relating
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to the Household Credit Card Master Note Trust I, as the same may be amended,
modified or otherwise supplemented from time to time.
"Certificates" shall mean, unless otherwise indicated, the Transferor
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Certificates and any Supplemental Certificates.
"Corporate Trust Office" shall mean, with respect to the Owner Trustee, the
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principal corporate trust office of the Owner Trustee located at Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Corporate
Trust Administration; or such other address as the Owner Trustee may designate
by notice to the Transferor, or the principal corporate trust office of any
successor Owner Trustee (the address of which the successor Owner Trustee will
notify the Transferor).
"Expenses" shall have the meaning specified in Section 7.02.
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"Foreclosure Remedy" shall have the meaning specified in the Indenture.
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"Indemnified Parties" shall have the meaning specified in Section 7.02.
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"Indenture" shall mean the Amended and Restated Master Indenture, dated as
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of November 16, 2000, between the Owner Trustee and Xxxxx Fargo Bank Minnesota,
N.A., as Indenture Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
"Indenture Trustee" shall mean Xxxxx Fargo Bank Minnesota, N.A., not in its
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individual capacity but solely as Indenture Trustee under the Indenture, and any
successor Indenture Trustee under the Indenture.
"Issuer" shall mean the Trust.
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"Owner" shall mean Household Receivables Funding, Inc. III, and its
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successors and permitted assigns, in its capacity as holder of the Transferor
Certificates.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
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corporation, not in its individual capacity but solely as owner trustee under
this Agreement (unless otherwise specified herein), and any successor Owner
Trustee hereunder.
"Secretary of State" shall mean the Secretary of State of the State of
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Delaware.
"Supplemental Certificate" shall have the meaning specified in subsection
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3.06(b).
"Transfer and Servicing Agreement" shall mean the Amended and Restated
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Transfer and Servicing Agreement, dated as of November 16, 2000, among the
Issuer, the Transferor and Household Finance Corporation, as Servicer, as the
same may be amended, supplemented or otherwise modified from time to time.
"Transferor" shall mean Household Receivables Funding, Inc. III, in its
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capacity as Transferor hereunder and its successors and assigns in such
capacity.
"Transferor Certificate Supplement" shall have the meaning specified in
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subsection 3.06(b).
"Transferor Certificates" shall mean the Transferor's uncertificated
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interest in the Trust as set forth in Section 3.06; provided, however, if the
Transferor elects to evidence such interest in certificated form pursuant to
Section 3.06, the certificates shall be executed by the Transferor and
authenticated by or on behalf of the Owner Trustee, substantially in the form of
Exhibit A.
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"Trust" shall mean the trust created by this Agreement, acting by and
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through Wilmington Trust Company, not in its individual capacity but solely as
Owner Trustee.
"Trust Company" shall mean Wilmington Trust Company.
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"Trust Estate" shall mean all right, title and interest of the Owner
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Trustee in and to the property and rights assigned to the Owner Trustee pursuant
to Section 2.05 of this Agreement and Section 2.01 of the Transfer and Servicing
Agreement, all monies, investment property, instruments and other property on
deposit from time to time in the Collection Account, the Series Accounts and the
Special Funding Account and all other property of the Trust from time to time,
including any rights of the Owner Trustee pursuant to the Transaction Documents.
"Trust Termination Date" shall have the meaning specified in Section 8.01.
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Section 1.02. Other Definitional Provisions. Capitalized terms used
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herein and not otherwise defined have the meanings assigned to them in the
Transfer and Servicing Agreement or, if not defined therein, in the Indenture.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles or regulatory accounting principles, as
applicable and as in effect on the date of this Agreement. To the extent that
the definitions of accounting terms in this Agreement or in any such certificate
or other document are inconsistent with the meanings of such terms under
generally
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accepted accounting principles or regulatory accounting principles in the United
States, the definitions contained in this Agreement or in any such certificate
or other document shall control.
(c) The words "hereof", "herein" and "hereunder" and words of similar
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import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; references to any subsection,
Section, Schedule or Exhibit are references to subsections, Sections, Schedules
and Exhibits in or to this Agreement unless otherwise specified; and the term
"including" means "including without limitation."
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(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
[End of Article I]
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ARTICLE II
ORGANIZATION
Section 2.01. Name. The Trust created hereby shall be known as "Household
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Credit Card Master Note Trust I," in which name the Owner Trustee may make and
execute contracts and other instruments.
Section 2.02. Office. The office of the Trust shall be in care of the
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Owner Trustee at the Corporate Trust Office or at such other address in the
State of Delaware as the Owner Trustee may designate by written notice to the
Indenture Trustee and the Transferor.
Section 2.03. Purpose and Powers. The purpose of the Trust is and the
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Owner Trustee shall have the power and authority to engage in the following
activities:
(i) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes and the Certificates,
to acquire the Receivables and related property and to pay the Transferor
the amounts owed pursuant to Section 2.01 of the Transfer and Servicing
Agreement;
(iii) to assign, grant, pledge and mortgage the Collateral pursuant
to the Indenture and to hold, manage and distribute to the Transferor and
the Noteholders pursuant to the terms of this Agreement and the Transaction
Documents any portion of the Collateral released from the lien of, and
remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Transaction
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction Documents, to engage
in such other activities as may be required in connection with conservation
of the Trust Estate and the making of payments to the Noteholders and
distributions to the Transferor.
The Owner Trustee shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the Transaction Documents.
Section 2.04. Appointment of Owner Trustee. The Transferor hereby
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appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. The
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Transferor hereby assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Trust Estate and
shall be held by the Owner Trustee. The
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Transferor shall pay organizational expenses of the Trust as they may arise or
shall, upon the request of the Owner Trustee, promptly reimburse the Owner
Trustee for any such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
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that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Transferor, subject to the
obligations of the Trust under the Transaction Documents to which it is a party.
It is the intention of the parties hereto that the Trust constitute a common law
trust under the laws of the State of Delaware. It is the intention of the
parties hereto that, for income and franchise tax purposes, the Trust shall be
treated as a security device and disregarded as an entity and its assets shall
be treated as owned in whole by the Transferor. The parties hereto agree that
they will take no action contrary to the foregoing intention. Effective as of
the date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
Section 2.07. Title to Trust Property. Legal title to all the Trust
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Estate shall be vested at all times in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
Section 2.08. Situs of Trust. The Trust will be located and administered
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in the State of Delaware. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or the State of
New York. The Trust shall not have any employees in any state other than
Delaware; provided, however, that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware.
Payments will be received by the Trust only in Delaware or New York, and
payments will be made by the Trust only from Delaware or New York. The only
office of the Trust will be at the Corporate Trust Office in Delaware.
Section 2.09. Representations and Warranties of Transferor. The
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Transferor hereby represents and warrants to the Owner Trustee that:
(a) The Transferor is a Delaware corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and has full
corporate power and authority to own its properties and to conduct its business
as such properties are presently owned and such business is presently conducted,
and to execute, deliver and perform its obligations under this Agreement and any
other document related hereto to which it is a party and to perform its
obligations as contemplated hereby and thereby.
(b) The Transferor is duly qualified to do business and is in good standing
(or is exempt from such requirement) in any state required in order to conduct
its business, and has obtained all necessary licenses and approvals with respect
to the Transferor, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would have a material adverse effect on its
ability to perform its obligations under this Agreement or any other document
related hereto to which the Transferor is a party.
(c) The execution and delivery of this Agreement and the consummation of
the transactions provided for in this Agreement and in the other Transaction
Documents to which the Transferor is a party have been duly authorized by the
Transferor by all necessary corporate action on its part and each of this
Agreement and the other Transaction Documents to which the Transferor is a party
will remain, from the time of its execution, an official record of the
Transferor; the Transferor has the power and authority to assign the property to
be assigned to and deposited with the Trust pursuant to Section 2.05 of this
Agreement and Section 2.01 of the Transfer and Servicing Agreement.
(d) The execution and delivery of this Agreement, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with, result in
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any breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust or other instrument to
which the Transferor is a party or by which it or any of its properties are
bound (other than violations of such indentures, contracts, agreements,
mortgages, deeds of trust or other instruments which, individually or in the
aggregate, would not have a material adverse effect on the Transferor's ability
to perform its obligations under this Agreement).
(e) The execution and delivery of this Agreement, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with or violate any Requirements of Law applicable to
the Transferor.
(f) There are no proceedings or investigations pending or, to the best
knowledge of the Transferor, threatened against the Transferor before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over the Transferor (i) asserting the
invalidity of any of the Transaction Documents to which the Transferor is a
party, (ii) seeking to prevent the consummation of any of the transactions
contemplated by any of the Transaction Documents to which the Transferor is a
party, (iii) seeking any determination or ruling that, in the reasonable
judgment of the Transferor, would materially and adversely affect the
performance by the Transferor of its obligations under the Transaction Documents
to which the Transferor is a party, or (iv) seeking any determination or ruling
that would materially and adversely affect the validity or enforceability of the
Transaction Documents to which the Transferor is a party.
Section 2.10. Liability of Holders of the Certificates. The holders of
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the Certificate, the Transferor Certificates and any Supplemental Certificates
shall not be personally liable for the debts or other obligations of the Trust
except to the extent provided otherwise in the Transaction Documents.
Section 2.11. Payments and Distributions.
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(a) Any amount held by the Trust with respect to the Trust Estate which is
not, and will not be, allocable to the Indenture Trustee to be applied in
accordance with the Indenture, shall be applied on the first Business Day
following each Distribution Date in the following order:
(i) to the extent not otherwise paid, to pay any other operating or
administrative expenses of the Trust; and
(ii) to distribute any remaining amounts and other property to the
holders of the Certificates.
The Servicer shall deliver a statement to the Owner Trustee setting forth the
amounts to be applied pursuant to such clauses (i) and (ii), which the Owner
Trustee may rely upon in making any payment.
(b) All payments and distributions required to be made to the holders of
the Certificates pursuant to this Section 2.11 shall be made to the holders of
the Certificates by wire transfer of immediately available funds or by such
other means as are acceptable to the Owner Trustee at least five Business Days
prior to such payment or distribution; provided that, payments and distributions
to the Holders of the Certificates will only be made under this Section 2.11 to
the extent that (i) the value of the assets of the Trust exceed the value of the
liabilities of the Trust and (ii) following any such payment and distribution,
the Trust will have sufficient assets to satisfy all probable liabilities of the
Trust and provided, further, that the Owner Trustee shall assume that the
provisions of clauses (i) and (ii) are satisfied unless the Indenture Trustee
informs the Owner Trustee otherwise.
[End of Article II]
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ARTICLE III
CERTIFICATES
Section 3.01. Initial Ownership. Upon the formation of the Trust by the
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contribution pursuant to Section 2.05, the Transferor shall be the Owner of the
Trust.
Section 3.02. Form of Certificates. (a) The Transferor or any Additional
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Transferor may elect at any time, by written notice to the Trustee, to have its
interest in the Trust be (i) an uncertificated interest or (ii) evidenced by a
certificate. The Transferor Certificate, if certificated, will be issued in
registered form, substantially in the form of Exhibit A, and shall upon issue,
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be executed and delivered by the Transferor to the Owner Trustee for
authentication and redelivery as provided in Section 3.03. If the Transferor or
any Additional Transferor elects to have its interest in the Trust be
uncertificated, it shall deliver to the Owner Trustee for cancellation any
Transferor Certificate or Supplemental Certificate, as the case may be,
previously issued and the Owner Trustee shall make appropriate entries in its
books and records to evidence such uncertificated interest in the Trust. The
Owner Trustee shall keep with the books and records of the Trust a register, in
book-entry form, of each Person owning any uncertificated interest in the Trust.
(b) The Certificates shall be executed by manual or facsimile signature of
the Owner Trustee. The Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall, when duly
authenticated pursuant to Section 3.03, be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of the Certificates or did not hold such offices at the date of authentication
and delivery of the Certificates.
Section 3.03. Authentication of Certificates. The Owner Trustee shall
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authenticate and deliver the Certificate, if certificated, upon the written
order of the Transferor, signed by its chairman of the board, its president, any
vice president, secretary, any assistant treasurer or any authorized signatory,
without further corporate action by the Transferor. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein, executed by or on behalf of the
Owner Trustee by the manual signature of a duly authorized signatory, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. Each Certificate shall be dated the date of its authentication.
Section 3.04. Restrictions on Transfer. To the fullest extent permitted
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by applicable law, the Certificates (or any interest therein) may not be sold,
transferred, assigned, participated, pledged or otherwise disposed of to any
Person; provided, however, that a Certificate (or any interest therein) may be
sold, transferred, assigned, participated, pledged or otherwise disposed of if
the transferor thereof has provided (a) the Owner Trustee and the Indenture
Trustee with a Tax Opinion relating to such sale, transfer, assignment,
participation, pledge or other disposition and (b) each Rating Agency written
notice (unless such notice requirement is otherwise waived by the Rating Agency)
ten days prior to such transfer.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificate. If (a) any
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mutilated Certificate is surrendered to the Owner Trustee, or the Owner Trustee
receives evidence to its reasonable satisfaction of the destruction, loss or
theft of any Certificate, and (b) there is delivered to the Owner Trustee such
security or indemnity as may be required by it to hold the Owner Trustee
harmless, then, the Owner Trustee on behalf of the Trust shall execute, and the
Owner Trustee shall authenticate and deliver, in
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exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a replacement Certificate of like tenor (including the same date of
issuance) and denomination. Upon the issuance of any replacement Certificate
under this Section, the Owner Trustee may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses connected therewith. Every
replacement Certificate issued pursuant to this Section in replacement of any
mutilated, destroyed, lost or stolen Certificate shall constitute complete and
indefeasible evidence of an interest in the Trust, as if originally issued,
whether or not the mutilated, destroyed, lost or stolen Certificate shall be
found at any time.
Section 3.06. Issuance of New Transferor Certificates. (a) Taken
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together, the Transferor Certificates shall represent an undivided beneficial
ownership interest in the Trust Estate subject to the lien of the Notes,
including the right to receive Collections with respect to the Receivables and
other amounts at the times and in the amounts specified in the Indenture and any
Indenture Supplement to be paid to the Transferor on behalf of all holders of
the Transferor Certificates.
(b) In connection with the issuance of a new Series of Investor
Certificates, the designation of an Additional Transferor pursuant to 2.09(g) of
the Transfer and Servicing Agreement or at any other time, a Transferor may
surrender its certificated or uncertificated Transferor Certificate to the Owner
Trustee in exchange for a newly issued certificated or uncertificated Transferor
Certificate and a second certificated or uncertificated interest in the
Transferor's interest (a "Supplemental Certificate") in the Trust, the terms of
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which shall be defined in a supplement (a "Transferor Certificate Supplement")
---------------------------------
to this Agreement (which Transferor Certificate Supplement shall be subject to
Section 10.01 to the extent that it amends any of the terms of this Agreement);
to be delivered to or upon the order of the Transferor (or the Holder of a
Supplemental Certificate, in the case of the transfer and exchange thereof);
provided, however, notwithstanding anything contained herein, any exchange of a
certificated Transferor Certificate for an uncertificated Transferor Certificate
or an uncertificated Transferor Certificate for a certificated Transferor
Certificate by the Holder of such Transferor Certificate shall not be subject to
the conditions set forth in clauses (i) through (vi) below. Except as set forth
in the proviso to the immediately preceding sentence, the issuance of any such
Supplemental Certificate shall be subject to satisfaction of the following
conditions:
(i) on or before the fifth day immediately preceding the Transferor
Certificate surrender and exchange, the Transferor shall have given the
Owner Trustee, the Servicer, the Indenture Trustee and each Rating Agency
notice (unless such notice requirement is otherwise waived) of such
Transferor Certificate surrender and exchange;
(ii) the Transferor shall have delivered to the Owner Trustee and the
Indenture Trustee any related Transferor Certificate Supplement in form
satisfactory to the Owner Trustee and the Indenture Trustee, executed by
each party hereto (other than the Owner Trustee, the Indenture Trustee and
the Holder of the Supplemental Certificate, if any);
(iii) the Rating Agency Condition shall have been satisfied with
respect to such Transferor Certificate surrender and exchange;
(iv) such surrender and exchange will not result in any Adverse
Effect and the Transferor shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate, dated the date of such
surrender and exchange to the effect that the Transferor reasonably
believes that such surrender and exchange will not, based on the facts
known to such officer at the time of such certification, have an Adverse
Effect;
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(v) the Transferor shall have delivered to the Owner Trustee and
Indenture Trustee (with a copy to each Rating Agency) a Tax Opinion, dated
the date of such surrender and exchange with respect to such surrender and
exchange; and
(vi) the aggregate amount of Principal Receivables plus the principal
amount of any Participation Interest theretofore conveyed to the Trust as
of the date of such surrender and exchange shall be greater than the
Required Minimum Principal Balance as of the date of such surrender and
exchange after giving effect to such surrender and exchange.
(c) Any Supplemental Certificate held by any Person may be transferred or
exchanged only upon the delivery to the Trustee of a Tax Opinion dated as of the
date of such transfer or exchange, as the case may be, with respect to such
transfer or exchange.
[End of Article III]
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ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Transferor with Respect to Certain Matters.
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With respect to the following matters, unless otherwise instructed by the
Transferor, the Owner Trustee shall not take action unless at least thirty (30)
days before the taking of such action the Owner Trustee shall have notified the
Transferor:
(a) the initiation of any claim or lawsuit by the Trust or the Owner
Trustee (other than an action to collect on the Trust Estate) and the settlement
of any action, claim or lawsuit brought by or against the Trust or the Owner
Trustee (other than an action to collect on the Trust Estate);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Transferor;
(d) the amendment, change or modification of the Administration Agreement,
except to cure any ambiguity or to amend or supplement any provision in a manner
that would not materially adversely affect the interests of the Transferor; or
(e) the appointment pursuant to the Indenture of a replacement or successor
Note Registrar or Indenture Trustee, or the consent to the assignment by the
Note Registrar, Administrator or Indenture Trustee of its obligations under the
Indenture.
Section 4.02. Restrictions on Power. The Owner Trustee shall not be
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required to take or refrain from taking any action if such action or inaction
would be contrary to any obligation of the Owner Trustee under any of the
Transaction Documents or would be contrary to Section 2.03.
[End of Article IV]
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ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01. General Authority. The Owner Trustee is authorized and
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directed to execute and deliver the Transaction Documents to which it is a party
and each certificate or other document attached as an exhibit to or contemplated
by the Transaction Documents to which the Owner Trustee is to be a party, or any
amendment thereto or other agreement, in each case, in such form as the
Transferor shall approve as evidenced conclusively by the Owner Trustee's
execution thereof and the Transferor's execution of the related documents. In
addition to the foregoing, the Owner Trustee is authorized, but shall not be
obligated, to take all actions required of the Owner Trustee pursuant to the
Transaction Documents. The Owner Trustee is further authorized from time to
time to take such action as the Transferor or the Administrator directs in
writing with respect to the Transaction Documents.
Section 5.02. General Duties. It shall be the duty of the Owner Trustee
--------------
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Transaction Documents to which it is a
party and to administer the Trust in the interest of the Transferor, subject to
the Transaction Documents and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement or other Transaction Document to perform any act or to
discharge any duty of the Owner Trustee or the Trust under any Transaction
Document, and the Owner Trustee shall not be liable for the default or failure
of the Administrator to carry out its obligations under the Administration
Agreement.
Section 5.03. Action Upon Instruction.
-----------------------
(a) The Owner Trustee shall not be required to take any action hereunder or
under any other Transaction Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
of any Transaction Document or is otherwise contrary to law.
(b) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of any Transaction
Document, the Owner Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Transferor requesting instruction as
to the course of action to be adopted, and to the extent the Owner Trustee acts
in good faith in accordance with any written instruction of the Transferor
received, the Owner Trustee shall not be liable on account of such action to any
Person. If the Owner Trustee shall not have received appropriate instruction
within ten (10) days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not in violation of the Transaction Documents, as it shall
deem to be in the best interest of the Transferor, and shall have no liability
to any Person for such action or inaction.
(c) In the event that the Owner Trustee is unsure as to the application of
any provision of any Transaction Document or any such provision is ambiguous as
to its application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Transferor requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such
11
instruction received, the Owner Trustee shall not be liable, on account of such
action or inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten (10) days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not in violation of the Transaction
Documents, as it shall deem to be in the best interests of the Transferor, and
shall have no liability to any Person for such action or inaction.
Section 5.04. No Duties Except as Specified in this Agreement or in
-----------------------------------------------------
Instructions. The Owner Trustee shall not have any duty or obligation to
------------
manage, make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Trust or the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, this Agreement or
any document contemplated hereby to which the Owner Trustee is a party, except
as expressly provided by the terms of this Agreement or in any document or
written instruction received by the Owner Trustee pursuant to Section 5.03; and
no implied duties or obligations shall be read into any Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
any filing or recording, including filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for the Trust or to record any Transaction
Document. The Trust Company nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Trust Estate that result from actions by, or claims against,
the Trust Company that are not related to the ownership or the administration of
the Trust Estate or the transactions contemplated by the Transaction Documents.
Section 5.05. No Action Except under Specified Documents or Instructions.
----------------------------------------------------------
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Estate except (a) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (b) in accordance with the Transaction Documents and (c) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 5.03.
Section 5.06. Restrictions. The Owner Trustee shall not take any action
------------
(a) that, to the actual knowledge of the Owner Trustee, would violate the
purposes of the Trust set forth in Section 2.03 or (b) that, to the actual
knowledge of the Owner Trustee, would result in the Trust's 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.
[End of Article V]
12
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01 Acceptance of Trusts and Duties. The Owner Trustee accepts
-------------------------------
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts, but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents. The Owner
Trustee shall not be answerable or accountable under any Transaction Document
under any circumstances, except (i) for its own willful misconduct or negligence
or (ii) in the case of the inaccuracy of any representation or warranty
contained in Section 6.03 expressly made by the Owner Trustee in its individual
capacity. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of judgment made in
good faith by the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator or the Transferor;
(c) no provision of this Agreement or any other Transaction Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any other Transaction Document, if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be liable for any
representation, warranty, consent or other indebtedness evidenced by or arising
under any of the Transaction Documents, including the principal of and interest
on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by the
Transferor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate or for or in respect of the validity or
sufficiency of the Transaction Documents, other than the genuineness of the
signature on the certificate of authentication on the Certificates, and the
Owner Trustee shall in no event assume or incur any liability, duty, or
obligation to any Noteholder or to the Owner, other than as expressly provided
for herein or expressly agreed to in the other Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Transferor, the Servicer, the Administrator or the Indenture Trustee under
any of the Transaction Documents or otherwise, and the Owner Trustee shall have
no obligation or liability to perform the obligations of the Owner Trustee under
the Transaction Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under the Indenture or
the Servicer under the Transfer and Servicing Agreement;
(g) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any other Transaction Document, at the request, order or direction
of the Transferor, unless the Transferor has offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or any other Transaction Document shall not be construed as a duty,
and the Owner Trustee
13
shall not be answerable for, other than its negligence or willful misconduct in
the performance of, any such act; and
(h) Notwithstanding anything contained herein to the contrary, the Owner
Trustee shall not be required to take any action in any jurisdiction other than
in the State of Delaware if the taking of such action will (i) require the
registration with, licensing by or the taking of any other similar action in
respect of, any state or other governmental authority or agency of any
jurisdiction other than the State of Delaware by or with respect to the Owner
Trustee; (ii) result in any fee, tax or other governmental charge under the laws
of any jurisdiction or any political subdivisions thereof in existence on the
date hereof other than the State of Delaware becoming payable by the Owner
Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from
acts unrelated to the consummation of the transactions by the Owner Trustee
contemplated hereby. The Owner Trustee shall be entitled to obtain advice of
counsel (which advice shall be an expense of the Transferor) to determine
whether any action required to be taken pursuant to the Agreement results in the
consequences described in clauses (i), (ii) and (iii) of the preceding sentence.
In the event that said counsel advises the Owner Trustee that such action will
result in such consequences, the Transferor shall appoint an additional trustee
pursuant to Section 9.05 hereof to proceed with such action.
Section 6.02. Furnishing of Documents. The Owner Trustee shall furnish to
-----------------------
the Transferor and the Indenture Trustee, promptly upon written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
Section 6.03. Representations and Warranties. The Owner Trustee hereby
------------------------------
represents and warrants to the Transferor that:
(a) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
Section 6.04. Reliance; Advice of Counsel.
---------------------------
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper reasonably believed by it to
be genuine and reasonably believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes
14
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers of the relevant party, as to such
fact or matter, and such certificate shall constitute full protection to the
Owner Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Transaction Documents, the Owner Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee with reasonable care, and (ii) may consult with counsel,
accountants and other skilled Persons to be selected with reasonable care and
employed by it. The Owner Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or written advice of any such counsel, accountants or other such Persons.
Section 6.05. Not Acting in Individual Capacity. Except as expressly
---------------------------------
provided in this Article VI, in accepting the trusts hereby created Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by any Transaction Document shall look only to
the Trust Estate for payment or satisfaction thereof.
Section 6.06. Owner Trustee Not Liable for Certificates, Notes or
---------------------------------------------------
Receivables. The recitals contained herein and in the Certificates (other than
-----------
the genuineness of the signature and counter-signature of the Owner Trustee on
the Certificates and its representations and warranties in Section 6.03) shall
be taken as the statements of the Transferor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, any other
Transaction Document or the Certificates (other than the genuineness of the
signature and counter-signature of the Owner Trustee on the Certificates), the
Notes, or related documents. The Owner Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of the Receivables or the perfection and priority of any security
interest in the Receivables or the maintenance of any such perfection and
priority, or for or with respect to the sufficiency of the Trust Estate or its
ability to generate the payments to be distributed to the Noteholders under the
Indenture, including, without limitation: the existence, condition and
ownership of the Receivables; the existence and contents of the Receivables on
any computer or other record thereof; the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the completeness of
the Receivables; the performance or enforcement of the Receivables; the
compliance by the Transferor with any warranty or representation made under any
Transaction Document or in any related document or the accuracy of any such
warranty or representation or any action of the Administrator, the Servicer or
the Indenture Trustee taken in the name of the Owner Trustee.
Section 6.07. Owner Trustee May Own Notes. The Owner Trustee in its
---------------------------
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Transferor, the Administrator, the Servicer and the Indenture
Trustee in banking transactions with the same rights as it would have if it were
not Owner Trustee.
[End of Article VI]
15
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01. Owner Trustee's Fees and Expenses. The Trust Company shall
---------------------------------
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Transferor and the
Trust Company, and the Trust Company shall be entitled to be reimbursed by the
Transferor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder; provided,
however, that the Owner Trustee's right to enforce such obligation shall be
subject to the provisions of Section 10.08.
Section 7.02. Indemnification. To the fullest extent permitted by law, the
---------------
Transferor shall be liable as primary obligor for, and shall indemnify the Trust
Company and its successors, assigns, agents, employees and servants
(collectively, the "Indemnified Parties") from and against, any and all
-------------------
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may at any time be imposed on, incurred by, or asserted
--------
against the Owner Trustee or any Indemnified Party in any way relating to or
arising out of the Transaction Documents, the Trust Estate, the acceptance and
administration of the Trust Estate or the action or inaction of the Owner
Trustee hereunder; provided that the Transferor shall not be liable for or
required to indemnify any Indemnified Party from and against Expenses arising or
resulting from any of the matters described in the third sentence of Section
6.01; provided further, that the Transferor shall not be liable for or required
to indemnify an Indemnified Party from and against expenses arising or resulting
from (i) the Indemnified Party's own willful misconduct, bad faith or
negligence, or (ii) the inaccuracy of any representation or warranty contained
in Section 6.03 made by the Indemnified Party. An Indemnified Party's right to
enforce such obligation shall be subject to the provisions of Section 10.08.
The indemnities contained in this Section 7.02 shall survive the resignation or
removal of the Owner Trustee or the termination of this Agreement. In the
event of any claim, action or proceeding for which indemnity will be sought
pursuant to this Section 7.02, the Owner Trustee's choice of legal counsel shall
be subject to the approval of the Transferor, which approval shall not be
unreasonably withheld.
Section 7.03. Payments to the Owner Trustee. Any amounts paid to an
-----------------------------
Indemnified Party pursuant to this Article VII shall be deemed not to be a part
of the Trust Estate immediately after such payment.
[End of Article VII]
16
ARTICLE VIII
TERMINATION OF TRUST AGREEMENT
Section 8.01. Termination of Trust Agreement.
------------------------------
(a) The Trust shall terminate upon the earlier of (i) dissolution of the
Trust in accordance with applicable law and (ii) at the option of the
Transferor, the day on which the right of all series of Notes to receive
payments from the Trust Estate has terminated (the "Trust Termination Date").
----------------------
Any money or other property held as part of the Trust Estate following such
termination shall be distributed to the Transferor. The bankruptcy,
liquidation, dissolution, termination, death or incapacity of the Transferor
shall not (x) operate to terminate this Agreement or the Trust, or (y) entitle
the Transferor's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Trust Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 8.01(a), so long as the Indenture
shall not have been terminated in accordance with its terms, this Agreement and
the Trust created hereby are irrevocable by the Transferor, unless the Indenture
Trustee consents in writing to the termination.
(c) Upon the winding up of the Trust, this Agreement (other than Article
VII) shall terminate.
[End of Article VIII]
17
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01. Eligibility Requirements for Owner Trustee. The Owner
------------------------------------------
Trustee shall at all times be a corporation authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent which has) a long-term unsecured rating of at least
Baa3 by Moody's, at least BBB- by Standard & Poor's and, if rated by Fitch, at
least BBB- by Fitch, or otherwise satisfactory to each Rating Agency. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 9.02.
Section 9.02. Resignation or Removal of Owner Trustee. The Owner Trustee
---------------------------------------
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Transferor; provided, however, that such
resignation and discharge shall only be effective upon the appointment of a
successor Owner Trustee. Upon receiving such notice of resignation, the
Transferor shall promptly appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Transferor, or if at any time the Owner Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver
of the Owner Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Owner Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Transferor may, but shall not be required to, remove the Owner Trustee. If the
Transferor shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Transferor shall promptly (i) appoint a successor Owner
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the outgoing Owner Trustee so removed and one copy to the
successor Owner Trustee and (ii) pay all fees owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Transferor shall provide notice of such
resignation or removal of the Owner Trustee to each Note Rating Agency.
Section 9.03. Successor Owner Trustee. Any successor Owner Trustee
-----------------------
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Transferor and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and
18
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 9.03 unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Transferor shall mail notice of such acceptance of appointment
including the name of such successor Owner Trustee to the Indenture Trustee, the
Noteholders and each Rating Agency. If the Transferor shall fail to mail such
notice within ten (10) days after acceptance of appointment by the successor
Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed
at the expense of the Transferor.
Section 9.04. Merger or Consolidation of Owner Trustee. Notwithstanding
----------------------------------------
anything herein to the contrary, any corporation into which the Owner Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Owner Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, shall be
the successor of the Owner Trustee hereunder (provided that such corporation
shall meet the eligibility requirements set forth in Section 9.01), without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto; provided, further, that the Owner Trustee shall mail notice
of such merger or consolidation to each Rating Agency.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate may at the time be located, the Transferor and the Owner
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by each of the Transferor
and the Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Estate,
and to vest in such Person, in such capacity, such title to the Trust Estate, or
any part thereof, and, subject to the other provisions of this Section, such
powers, duties, obligations, rights and trusts as the Transferor and the Owner
Trustee may consider necessary or desirable. If the Transferor shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Owner Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 9.01 and no
notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such 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;
19
(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.
[End of Article IX]
20
ARTICLE X
MISCELLANEOUS
Section 10.01. Supplements and Amendments. This Agreement may be amended
--------------------------
from time to time, by a written amendment duly executed and delivered by the
Transferor and the Owner Trustee, with the written consent of the Indenture
Trustee and 10 days prior written notice to the Rating Agencies, but without the
consent of any of the Noteholders, to cure any ambiguity, to correct or
supplement any provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the Noteholders;
provided, however, that such amendment will not (i) as evidenced by an Officer's
Certificate of the Transferor addressed and delivered to the Owner Trustee and
the Indenture Trustee, materially and adversely affect the interest of any
Noteholder or the Owner and (ii) as evidenced by an Opinion of Counsel addressed
and delivered to the Owner Trustee and the Indenture Trustee, cause the Trust to
be classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes; provided, further, that Section
2.03 of this Agreement may be amended only with the consent of the Holders of
Notes evidencing not less than a majority of the Outstanding Amount of the
Notes. Additionally, notwithstanding the preceding sentence, this Agreement
will be amended by the Transferor and the Owner Trustee without the consent of
the Indenture Trustee or any of the Noteholders to add, modify or eliminate such
provisions as may be necessary or advisable in order to enable all or a portion
of the Trust (i) to qualify as, and to permit an election to be made to cause
the Trust to be treated as, a "financial asset securitization investment trust"
as described in the provisions of Section 860L of the Code, and (ii) to avoid
the imposition of state or local income or franchise taxes imposed on the
Trust's property or its income; provided, however, that (i) the Transferor
delivers to the Indenture Trustee and the Owner Trustee an Officer's Certificate
to the effect that the proposed amendments meet the requirements set forth in
this subsection, (ii) each Rating Agency will have notified the Transferor, the
Servicer, the Indenture Trustee and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the rating of any
outstanding Series or Class as to which it is a Rating Agency and (iii) such
amendment does not affect the rights, duties or obligations of the Owner Trustee
hereunder. The amendments which the Transferor may make without the consent of
Noteholders pursuant to the preceding sentence may include, without limitation,
the addition of a sale of Receivables.
This Agreement may also be amended from time to time by a written amendment
duly executed and delivered by the Transferor and the Owner Trustee, with prior
written notice to each Rating Agency, with the consent of the Indenture Trustee
and, the Holders of Notes evidencing not less than a majority of the Outstanding
Amount of the Notes, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders; provided, however, that
without the consent of all Noteholders, no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the timing of
distributions that are required to be made for the benefit of the Noteholders or
(b) reduce the aforesaid percentage of the Outstanding Amount of the Notes, the
Holders of which are required to consent to any such amendment; provided,
further, such amendment shall be subject to delivery to the Indenture Trustee of
a Tax Opinion.
Promptly after the execution of any such amendment or consent, the
Transferor shall furnish written notification of the substance of such amendment
or consent to the Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Noteholders pursuant to
this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
21
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.
The Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an officer's certificate of the Transferor to the
effect that the conditions to such amendment have been satisfied.
The Owner Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Owner Trustee's own rights, duties or immunities
under this Agreement or otherwise.
Section 10.02. No Legal Title to Trust Estate in Transferor. The
--------------------------------------------
Transferor shall not have legal title to any part of the Trust Estate. No
transfer, by operation of law or otherwise, of any right, title, and interest of
the Transferor to and in its beneficial ownership interest in the Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate.
Section 10.03. Limitations on Rights of Others. The provisions of this
-------------------------------
Agreement are solely for the benefit of the Owner Trustee, the Transferor, the
holder of any Certificate and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
Section 10.04. Notices. Unless otherwise expressly specified or permitted
-------
by the terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Owner
Trustee or Indenture Trustee shall be deemed given only upon actual receipt by
the Owner Trustee or Indenture Trustee), if to the Owner Trustee, addressed to
the Corporate Trust Office; if to the Indenture Trustee, addressed to Xxxxx
Fargo Bank Minnesota, MAC N9311-161, National Association, 0xx & Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Asset Backed Securities, if to the
Transferor, addressed to Household Receivables Funding, Inc. III, 0000 Xxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, Attention: Manager-Compliance, if to
Fitch, addressed to Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, XX 00000,
Attention: ABS Surveillance, if to Moody's, addressed to Xxxxx'x Investors
Service Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: ABS Monitoring
Group, if to Standard & Poor's, addressed to Standard & Poor's Ratings Group, 00
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Credit Card ABS or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
Section 10.05. Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.06. Separate Counterparts. This Agreement may be executed by
---------------------
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and the Transferor and its
22
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Transferor shall
bind the successors and assigns of the Transferor.
Section 10.08. Nonpetition Covenants. Notwithstanding any prior
---------------------
termination of the Trust or this Agreement, the Owner Trustee (not in its
individual capacity) shall not at any time with respect to the Trust or the
Transferor, acquiesce, petition or otherwise invoke or cause the Trust or the
Transferor to invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against the Trust or the Transferor
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust or the Transferor or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Trust or the Transferor; provided, however, that this Section 10.08 shall not
operate to preclude any remedy described in Article V of the Indenture.
Section 10.09. No Recourse. Each Person owning or holding a Certificate
-----------
by accepting the Certificates (other than the Trust) acknowledges that the
Certificates do not represent interest in or obligations of the Servicer, the
Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof
(other than the Trust), and no recourse may be had against such parties or their
assets, or against the assets pledged under the Indenture, except as expressly
provided in the Transaction Documents.
Section 10.10. Headings. The headings of the various Articles and
--------
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12. Transferor Payment Obligation. The Transferor shall be
-----------------------------
responsible for payment of the Administrator's fees under the Administration
Agreement (to the extent not paid pursuant to the applicable Indenture
Supplement) and shall reimburse the Administrator for all expenses and
liabilities of the Administrator incurred thereunder.
Section 10.13. Acceptance of Terms of Agreement. THE RECEIPT AND
--------------------------------
ACCEPTANCE OF THE TRANSFEROR CERTIFICATE BY THE TRANSFEROR, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE TRANSFEROR OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT,
AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND PROVISIONS OF
THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST
AND THE TRANSFEROR.
Section 10.14. Integration of Documents. This Agreement constitutes the
------------------------
entire agreement of the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersedes all prior agreements relating to the
subject matter hereof and thereof.
[End of Article X]
[Signature Page to Follow]
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
WILMINGTON TRUST COMPANY,
By:/s/ Xxxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
HOUSEHOLD RECEIVABLES FUNDING, INC. III,
as Transferor,
By:/s/ X.X. Xxxxx
-------------------------------------------
Name: X.X. Xxxxx
Title: Assistant Treasurer
24
EXHIBIT A
Form of Transferor Certificate
------------------------------
THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY PORTION
HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH
REGISTRATION PROVISIONS.
THIS TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED,
EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS
OF THE AMENDED AND RESTATED TRANSFER AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. R-__ One Unit
HOUSEHOLD CREDIT CARD MASTER NOTE TRUST I
TRANSFEROR CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST
IN CERTAIN ASSETS OF THE
HOUSEHOLD CREDIT CARD MASTER NOTE TRUST I
Evidencing an interest in a trust, the corpus of which consists primarily
of an interest in receivables generated from time to time in the ordinary course
of business in a portfolio of revolving credit accounts transferred by Household
Receivables Funding, Inc. III (the "Transferor").
----------
(Not an interest in or obligation of the Transferor
or any affiliate thereof)
This certifies that HOUSEHOLD RECEIVABLES FUNDING, INC. III is the
registered owner of an undivided beneficial ownership interest in the assets of
a trust (the "Trust") subject to the lien of the Noteholders pursuant to the
-----
Amended and Restated Master Indenture dated as of November 16, 2000 (as amended
and supplemented, the "Indenture") between the Trust and Xxxxx Fargo Bank
---------
Minnesota, National Association, as Indenture Trustee and not allocated to the
interest of any Holder of a Supplemental Certificate pursuant to the Amended and
Restated Trust Agreement dated as of November 16, 2000 (as amended and
supplemented, the "Trust Agreement"), between Household Receivables Funding,
---------------
Inc. III, a Delaware corporation, as Transferor, and Wilmington Trust Company,
as owner trustee (the "Owner Trustee"). The corpus of the Trust consists of (a)
-------------
a portfolio of certain receivables (the "Receivables") existing in the revolving
-----------
credit accounts identified under the Amended and Restated Transfer and Servicing
Agreement dated as of November 16, 2000 (the "Transfer and Servicing
----------------------
Agreement"), among the Transferor, Household Finance Corporation, as Servicer
---------
(the "Servicer") and the Trust, as Issuer from time to time (the "Accounts"),
-------- --------
(b) certain Receivables generated under the Accounts from time to time
thereafter, (c) certain funds collected or to be collected from accountholders
in respect of the Receivables, (d) all funds which are from time to time on
deposit in the Collection Account, Special Funding Account and in the Series
Accounts, (e) the benefits of any Series Enhancements issued and to be issued by
Series Enhancers with respect to one or more Series of Notes and (f) 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
A-1
provisions of the Transfer and Servicing Agreement, the Trust Agreement and the
Indenture (collectively, the "Agreements") is set forth below, this Certificate
----------
does not purport to summarize the Agreements and reference is made to the
Agreements for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Owner Trustee. A copy of the Agreements may be requested from
the Owner Trustee by writing to the Owner Trustee at the Corporate Trust Office.
To the extent not defined herein, the capitalized terms used herein have the
meanings ascribed to them in the Agreements.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreements, to which Agreements, as amended and
supplemented from time to time, the Transferor by virtue of the acceptance
hereof assents and is bound.
The Receivables consist of Principal Receivables which arise generally
from the purchase of merchandise and services and amounts advanced to
cardholders as cash advances and Finance Charge and Administration Receivables
which arise generally from Periodic Finance Charges, Late Fees and other fees
and charges with respect to the Accounts.
This Certificate is the Transferor Certificate, which represents the
undivided beneficial interest in certain assets of the Trust, subject to the
lien of the Notes, including the right to receive a portion of the Collections
and other amounts at the times and in the amounts specified in the Indenture.
In addition to the Transferor Certificate, (a) Notes will be issued to investors
pursuant to the Indenture, which will represent obligations of the Trust, and
(b) Supplemental Certificates may be issued pursuant to the Trust Agreement.
Unless otherwise specified in an Indenture Supplement with respect to
a particular Series the Transferor has entered into the Transfer and Servicing
Agreement, and this Certificate is issued, with the intention that, for federal,
state and local income and franchise tax purposes, (a) the Notes of each Series
which are characterized as indebtedness at the time of their issuance will
qualify as indebtedness of the Transferor secured by the Receivables and (b) the
Trust shall not be treated as an association taxable as a corporation. The
Transferor, by entering into the Transfer and Servicing Agreement and by the
acceptance of this Transferor Certificate, agrees to treat the Notes for
federal, state and local income and franchise tax purposes as indebtedness of
the Transferor.
Subject to certain conditions and exceptions specified in the
Agreements, the obligations created by the Agreements and the Trust created
thereby shall terminate on the Trust Termination Date.
A-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, this Certificate to be duly executed by the Owner
Trustee.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the
HOUSEHOLD CREDIT CARD MASTER
NOTE TRUST I
By _____________________________________
Name:
Title:
Dated: [_________ __, ____]
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate described in the within-mentioned
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the
HOUSEHOLD CREDIT CARD MASTER
NOTE TRUST I
By:______________________________________
Authorized Signatory
A-4
