EXHIBIT 3.1
TRUST AGREEMENT
OF
FLEET CREDIT CARD FUNDING TRUST
DATED AS OF
March 28, 2002
TABLE OF CONTENTS
Page
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ARTICLE I. THE TRUST..............................................................................................2
SECTION 1.1. Conversion..................................................................................2
SECTION 1.2. Business Offices............................................................................2
SECTION 1.3. Name and Nature of Trust....................................................................2
SECTION 1.4. Purposes and Powers.........................................................................3
ARTICLE II.
RESIDENT TRUSTEE.........................................................................................6
SECTION 2.1. Resident Trustee............................................................................6
ARTICLE III.
MANAGING TRUSTEES.................................................................................................9
SECTION 3.1. General.....................................................................................9
SECTION 3.2. Specific Powers and Authority..............................................................10
SECTION 3.3. Restrictions...............................................................................12
SECTION 3.4. Independent Trustees.......................................................................14
SECTION 3.5. Reports....................................................................................15
SECTION 3.6. Officers...................................................................................15
ARTICLE IV. BENEFICIAL INTERESTS IN THE TRUST....................................................................17
SECTION 4.1. Beneficial Interests.......................................................................17
ARTICLE V. BENEFICIAL OWNERS.....................................................................................19
SECTION 5.1. Meetings of Beneficial Owners..............................................................19
SECTION 5.2. Voting Rights of Beneficial Owners.........................................................19
ARTICLE VI. LIABILITY OF BENEFICIAL OWNERS, TRUSTEES, OFFICERS, EMPLOYEES, AND AGENTS AND TRANSACTIONS
BETWEEN THEM AND THE TRUST...........................................................................20
SECTION 6.1. Limitation of Beneficial Owner Liability...................................................20
SECTION 6.2. Limitation of Trustee Liability............................................................20
SECTION 6.3. Express Exculpatory Clauses in Instruments.................................................20
SECTION 6.4. Indemnification............................................................................20
ARTICLE VII. AMENDMENTS; REORGANIZATION; MERGER, ETC.............................................................22
SECTION 7.1. Amendments.................................................................................22
ARTICLE VIII. DURATION AND TERMINATION OF TRUST..................................................................22
SECTION 8.1. Duration of Trust..........................................................................22
SECTION 8.2. Termination of Trust.......................................................................23
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ARTICLE IX. MISCELLANEOUS........................................................................................23
SECTION 9.1. Governing Law..............................................................................24
SECTION 9.2. Reliance by Third Parties..................................................................24
SECTION 9.3. Provisions Held Invalid or Unenforceable...................................................24
SECTION 9.4. Construction...............................................................................24
SECTION 9.5. Counterparts...............................................................................24
SECTION 9.6. Non-Petition Covenant......................................................................25
SECTION 9.7. Successors and Assigns.....................................................................25
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TABLE OF CONTENTS (CONT'D)
Page
SECTION 9.8. Other Business.............................................................................25
SECTION 9.9. Trust Assets...............................................................................25
EXHIBIT A - Form of Certificate of Beneficial Interest
SCHEDULE A - Definitions
SCHEDULE B - Officers
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TRUST AGREEMENT
THIS TRUST AGREEMENT is made and entered into as of March 28, 2002,
among Fleet Credit Card Services, L.P., a Rhode Island limited partnership
("Fleet Credit Card"), Wilmington Trust Company, a Delaware banking corporation,
acting hereunder not in its individual capacity but solely as trustee (together
with any successor thereto, the "Resident Trustee"), and the undersigned
Managing Trustees to effect the creation of a trust in accordance with the
Delaware Business Trust Act, 12 Del. C. " 3801, et seq., as amended from time to
time (the "Trust Act").
RECITALS:
WHEREAS, Fleet Credit Card Funding, LLC (the "Company"), was
formed as a Delaware limited liability company on November 15, 2001, by Fleet
Bank (RI), National Association, a national banking association (together with
any successor in interest by merger or otherwise, the "Bank"), as the sole
equity member of the Company (the "Original Member"), pursuant to the Delaware
Limited Liability Company Act, 6 Del. C. " 18-101, et seq., as amended from time
to time (the "LLC Act");
WHEREAS, on March 28, 2002, pursuant to that certain
Assignment of Limited Liability Company Interest and Amendment to Amended and
Restated Limited Liability Company Agreement of the Company, (i) the Original
Member transferred all of its limited liability company interest in the Company
as a member of the Company to Fleet Credit Card, (ii) the Original Member
resigned from the Company as a member of the Company, and (iii) Fleet Credit
Card was admitted to the Company as the sole equity member of the Company (the
"Member");
WHEREAS, on the date hereof, by written consent, the Member
and all of the members of the board of directors of the Company approved the
conversion of the Company to a Delaware business trust and approved this
Agreement;
WHEREAS, on the date hereof, the Company has converted to a
Delaware business trust pursuant to Section 18-216 of the LLC Act and Section
3820 of the Trust Act, by causing the filing with the Secretary of State of the
State of Delaware of a Certificate of Conversion to Business Trust and a
Certificate of Trust (the "Conversion"); and
WHEREAS, upon the effectiveness of the Conversion, (i) Fleet
Credit Card shall become the initial Beneficial Owner, (ii) Wilmington Trust
Company shall be appointed as the Resident Trustee, and (iii) each of Xxxx
Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxx X. Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx X. Abedine
and Xxxxxx X. Xxxxxxxxxx shall be appointed as a Managing Trustee.
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ARTICLE I.
THE TRUST
SECTION 1.1. CONVERSION.
(a) Effective as of the time of the Conversion, (i) the limited
liability company agreement of the Company, as amended, is replaced and
superseded in its entirety by this Agreement in respect of all periods beginning
on or after the Conversion, (ii) all of the limited liability company interests
in the Company are canceled and Fleet Credit Card is automatically admitted to
the Trust as the sole Beneficial Owner, and (iii) the parties hereto are
continuing the business of the Company without dissolution in the form of a
Delaware business trust governed by this Agreement. In accordance with Section
3820 of the Trust Act, the Trust shall constitute a continuation of the
existence of the Company in the form of a Delaware business trust and, for all
purposes of the laws of the State of Delaware, shall be deemed to be the same
entity as the Company.
(b) Upon the effectiveness of the Conversion, all debts, liabilities
and duties of the Company shall remain attached to the Trust and may be enforced
against the Trust as if said debts, liabilities and duties had been incurred or
contracted by the Trust in its capacity as a business trust. Accordingly,
effective as of the time of the Conversion, all of the debts, liabilities and
duties of the Company under each of the Basic Documents (including, with respect
to certain of the Basic Documents, as a substituted party for the Bank) shall
remain attached to the Trust.
SECTION 1.2. BUSINESS OFFICES. The principal office of the Trust shall
be located at 000 X. Xxxxxxxxx Xxxxx, Xxxxx: XX XX 00000X, Xxxxxx, Xxxxxxxx
00000, and thereafter shall be located at such place or places as the Board of
Managing Trustees may designate from time to time.
SECTION 1.3. NAME AND NATURE OF TRUST.
(a) The name of the Trust created hereby is "Fleet Credit Card Funding
Trust." It is the intention of the parties hereto that the Trust created hereby
be a business trust within the meaning of the Trust Act and that this Agreement
constitute the governing instrument of the Trust. Except for tax purposes as
provided in Section 1.3(b) below, the Trust shall not be deemed to be a general
partnership, limited partnership, joint venture, joint shares company or a
corporation. The Trustees are hereby authorized to and shall execute and file
(i) a Certificate of Trust pursuant to Section 3810 of the Trust Act, and (ii) a
Certificate of Conversion to Business Trust pursuant to Section 3820 of the
Trust Act. The Trust's activities shall be conducted and all documents shall be
executed under the foregoing name, which name (and the word "Trust" wherever
used in this Agreement, except where the context otherwise requires) shall refer
to the business trust created hereby as a separate legal entity. Any documents
executed by the Company prior to the effective time of the Conversion shall
continue as legal, valid and binding agreements of the Trust notwithstanding
that such documents were executed in the name of the Company.
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(b) It is the intention of the parties hereto that, solely for income
and franchise tax purposes (i) so long as there is a sole Beneficial Owner, the
Trust shall be disregarded and not be treated as an entity separate from its
sole Beneficial Owner and (ii) if there is more than one Beneficial Owner, the
Trust shall be treated as a partnership, with the assets of the partnership
being the assets held by the Trust and the partners of the partnership being the
Beneficial Owners. The Trust shall not elect to be treated as an association
under Section 301.7701-3(a) of the regulations of the United States Department
of the Treasury for federal income tax purposes. The parties hereto agree that,
unless otherwise required by appropriate tax authorities, the Trust will file or
cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as provided in the second
preceding sentence for such tax purposes.
(c) All legal and equitable title to all Trust Assets shall be vested
at all times in the Trust as a separate legal entity.
SECTION 1.4. PURPOSES AND POWERS.
(a) The sole purposes for which the Trust is created are to engage
exclusively in the following activities:
(i) to execute and deliver, and to perform its obligations under,
a Receivables Purchase Agreement with the Bank, dated as of
January 1, 2002, as amended by Amendment Number 1 thereto (the
Receivables Purchase Agreement, as so amended, and as from
time to time further amended, supplemented or otherwise
modified, the "Purchase Agreement"), to purchase or otherwise
acquire assets from the Bank, to execute and deliver and to
perform its obligations under, any amendments and/or
supplements, including any supplemental conveyances relating
to the Purchase Agreement, and to engage in any activities
necessary, appropriate or convenient in connection with the
rights and obligations of the Trust under the Purchase
Agreement and in connection with the acquisition of assets
from the Bank and to authorize, execute, deliver and perform
any other agreement, notice or document, in connection with,
relating to or contemplated by the Purchase Agreement or the
acquisition of assets from the Bank;
(ii) to purchase, acquire, own, hold, sell, dispose of, endorse,
transfer, assign, pledge and finance the Purchased Assets (as
defined in the Purchase Agreement) including, without
limitation, to grant a security interest in the Purchased
Assets;
(iii) to engage in any activities necessary to hold, receive,
exchange, sell, transfer, otherwise dispose of and otherwise
deal in and exercise all rights, powers, privileges, and all
other incidents of ownership or possession with respect to,
all of the Trust's property, including without limitation, the
Purchased Assets and any property or interest which may be
acquired by the Trust as a result
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of any distribution in respect of the Purchased Assets and any
property received by the Trust as a contribution from the
Bank, prior to the Conversion, or from a Beneficial Owner;
(iv) to execute and deliver, and to incur debt and other
obligations and perform its obligations under, a Revolving
Credit Agreement with the Bank, dated as of January 1, 2002,
as amended by Amendment Number 1 thereto (as such may be
further amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), to execute and deliver, and
to perform its obligations under, any amendments or
supplements relating to the Credit Agreement, and to engage in
any activities necessary, appropriate or convenient, and to
authorize, execute, deliver and perform any other agreement,
notice or document, in connection with, relating to or
contemplated by the Credit Agreement;
(v) to execute and deliver, and to perform its obligations under,
an Amended and Restated Pooling and Servicing Agreement, dated
as of January 1, 2002, by and among the Company, as
Transferor, the Bank, as Servicer, and Bankers Trust Company
(the "Master Trust Trustee") with respect to the Fleet Credit
Card Master Trust II (the "Master Trust"), as amended by
Amendment Number 1 thereto (as such may be further amended,
supplemented or otherwise modified from time to time, the
"Pooling and Servicing Agreement") and under each Series
Supplement thereto;
(vi) to execute and deliver, and to perform its obligations under,
Transfer and Administration Agreements each originally entered
into by and between the Bank as Transferor and Administrator
and a separate Delaware business trust for each of which
Wilmington Trust Company acts as owner trustee (each such
agreement as it may be amended, supplemented or otherwise
modified from time to time, a "Transfer Agreement");
(vii) to execute and deliver, and to perform its obligations under,
Trust Agreements each of which relates to a separate Delaware
business trust and each of which was originally entered into
by and between the Bank as Transferor and Wilmington Trust
Company, as owner trustee (each such agreement as it may be
amended, supplemented or otherwise modified from time to time,
an "Owner Trust Agreement");
(viii) to execute and deliver, and to perform its obligations under,
the Pooling and Servicing Agreement, to sell or otherwise
transfer all or any of the Purchased Assets to the Master
Trust Trustee in connection therewith, to execute Trust
Obligations issued under the Pooling and Servicing Agreement
and any Series Supplements, to execute and deliver, and to
perform its obligations under, any amendments, supplements,
assignments, reassignments or reconveyances of receivables and
other assets related to the Pooling and Servicing Agreement,
to provide for the issuance of additional series of Trust
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Obligations under the Pooling and Servicing Agreement and to
execute, deliver and perform its obligations under each
additional Series Supplement and other documents related to
the issuance of Trust Obligations and to engage in any
activities necessary, appropriate or convenient, and to
authorize, execute, deliver and perform any other agreement,
notice or document, in connection with or relating to the
Master Trust or Trust Obligations or relating to or
contemplated by the Pooling and Servicing Agreement and the
Series Supplements thereto; (ix) to execute and deliver, and
to perform its obligations under, any amendments or
supplements related to the Transfer Agreements and Owner Trust
Agreements, and to engage in any activities necessary,
appropriate or convenient, and to authorize, execute, deliver
and perform any other agreement, notice or document, in
connection with, relating to or contemplated by the Transfer
Agreements and the Owner Trust Agreements;
(x) to acquire, hold, enjoy, sell or otherwise transfer and grant
rights in all of the rights and privileges of any certificate,
interest or other indicia of beneficial ownership issued by
the Master Trust or any other Person pursuant to any trust
agreement, purchase agreement, pooling and servicing
agreement, indenture or other document and transfer such
certificate, interest or other indicia of beneficial ownership
interest to another Person;
(xi) to prepare and file with the Securities and Exchange
Commission and to execute the Registration Statement on Form
S-3 or other appropriate form, including the prospectus and
the exhibits included therein, and pre-effective or
post-effective amendments thereto and any registration
statements filed subsequent thereto under Rule 462(b)
promulgated under the Securities Act (collectively, the
"Registration Statement").
(xii) to engage in any activities necessary, appropriate or
convenient, and to authorize, execute, deliver and perform the
Basic Documents and any other agreement, notice or document,
in connection with or relating to the activities described
above, including the filing of any notices, applications,
financing statements, and other documents necessary, advisable
or convenient to comply with any applicable laws, statutes,
rules and regulation;
(xiii) to acquire, own, hold, sell, transfer, service, convey,
safekeep, dispose of, pledge, assign, borrow money against,
finance, refinance or otherwise deal with, publicly or
privately issued asset backed securities and whether with
unrelated third parties or with affiliated entities; and
(xiv) to engage in any lawful act or activity and to exercise any
powers permitted to business trusts under the laws of the
State of Delaware that are related or incidental to and
necessary, convenient or advisable for the accomplishment of
the above-mentioned purposes (including the entering into of
underwriting agreements, interest rate or basis swap, cap,
floor or collar agreements,
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currency exchange agreements or similar hedging transactions
and referral, management, servicing and administration
agreements).
(b) The Trust, and any Managing Trustee or Officer on behalf of the
Trust, may enter into and perform the Basic Documents and all documents,
agreements, certificates, assignments, reassignments, amendments, supplements or
financing statements contemplated thereby or related thereto, all without any
further act, vote or approval of any Beneficial Owner, Trustee, Officer or other
Person notwithstanding any other provision of this Agreement, the Trust Act or
applicable law, rule or regulation. The foregoing authorization shall not be
deemed a restriction on the powers of any Managing Trustee or Officer to enter
into other agreements on behalf of the Trust. Except where expressly required
herein to the contrary, any individual Managing Trustee may execute and deliver
a document as and for the act of all Managing Trustees and the Trust.
(c) The Board of Managing Trustees and the Officers of the Trust on
behalf of the Trust, (i) shall have and exercise all powers necessary,
convenient or incidental to accomplish its purposes as set forth herein and (ii)
shall have and exercise all of the powers and rights conferred upon business
trusts created pursuant to the Trust Act.
ARTICLE II.
RESIDENT TRUSTEE
SECTION 2.1. RESIDENT TRUSTEE.
(a) Initial Resident Trustee. Wilmington Trust Company shall be the
initial Resident Trustee, and it shall serve until such time as a qualified
successor is appointed by the Board of Managing Trustees in accordance with the
terms of this Section 2.1.
(b) Powers. The Resident Trustee shall constitute the Trustee required
pursuant to Section 3807(a) of the Trust Act and shall have only the rights,
obligations, and liabilities specifically provided for herein and in the Trust
Act and shall have no implied rights, obligations, or liabilities with respect
to the affairs of the Trust. The duties and responsibilities of the Resident
Trustee shall be limited solely to (i) acting as agent for purposes of service
of process, (ii) the execution, filing, and delivery of all documents and
certificates required under the Trust Act and (iii) the maintenance of all
records necessary to form and maintain the existence of the Trust under the
Trust Act. Notwithstanding any other provision contained herein, unless
specifically directed in writing by the Board of Managing Trustees and consented
to by the Resident Trustee, the Resident Trustee shall not participate in any
decisions relating to, or possess any authority independently to manage or
control, the business of the Trust. In no event shall the Resident Trustee have
any liability for the acts or omissions of the Managing Trustees, nor shall the
Resident Trustee be liable for supervising or monitoring the performance of
duties or obligations of the Managing Trustees. The Resident Trustee shall
provide prompt notice to the Managing Trustees of its performance of any of the
foregoing. The Managing Trustees shall reasonably keep the Resident Trustee
informed of any
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actions taken by the Managing Trustees with respect to the Trust that affect the
rights, obligations, or liabilities of the Resident Trustee hereunder or under
the Trust Act.
(c) Compensation and Expenses of Resident Trustee. The Resident Trustee
shall be entitled to receive from the Trust reasonable compensation for its
services hereunder, and shall be entitled to be reimbursed by the Trust for
reasonable out-of-pocket expenses incurred by the Resident Trustee in the
performance of its duties hereunder. Such compensation and reimbursement shall
be provided as set forth in that certain Fee and Indemnification Agreement,
dated as of the date hereof, by and among the Trust, the Resident Trustee and
the Bank, as servicer of the assets of the Trust. So long as any Trust
Obligation is outstanding, none of the expenses of the Trust set forth in this
Section 2.1(c) shall be payable from amounts allocable to any other Person
pursuant to the Basic Documents.
(d) Certain Matters With Respect to Resident Trustee. The Resident
Trustee shall not be personally liable under any circumstances, except for its
own willful misconduct or negligence or bad faith. In particular, but not by way
of limitation:
(i) The Resident Trustee shall not be personally liable for
any error of judgment made in good faith, except to the extent such
error of judgment constitutes willful misconduct, negligence or bad
faith on its part.
(ii) No provision of this Agreement shall require the Resident
Trustee to expend or risk its personal funds or otherwise incur any
financial liability in the performance of its rights or powers
hereunder if the Resident Trustee shall have reasonable grounds for
believing that the payment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it.
(iii) Under no circumstances shall the Resident Trustee be
personally liable for any representation, warranty, covenant,
agreement, or indebtedness of the Trust, except for such
representations, warranties, covenants, or agreements made by it in
connection with performing the functions described in this Section 2.1.
(iv) The Resident Trustee shall not be personally responsible
for or in respect of the validity or sufficiency of this Agreement or
for the due execution hereof by the Managing Trustees.
(v) Provided that the Resident Trustee has acted in good faith
and in the absence of willful misconduct, negligence and bad faith, the
Resident 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 the Resident Trustee to be genuine and
reasonably believed by the Resident Trustee to be signed by the proper
party or parties. The Resident Trustee may accept a certified copy of a
resolution of the board of trustees or other governing body of an
entity as conclusive evidence that such resolution has been duly
adopted by such body on behalf of such entity and that the same is in
full force and effect. As to any fact or matter the manner of
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ascertainment of which is not specifically prescribed herein, the
Resident Trustee may for all purposes hereof rely on a certificate,
signed by the Managing Trustees, as to such fact or matter, and such
certificate shall constitute full protection to the Resident Trustee
for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(vi) In the exercise or administration of the Trust hereunder,
the Resident Trustee (a) at the expense of the Trust may act directly
or through agents or attorneys pursuant to agreements entered into with
any of them, and (b) at the expense of the Trust may consult with
counsel, accountants, and other skilled persons to be selected by it in
good faith and with due care and employed by it. The Resident Trustee
shall not be liable for the default or misconduct of such agents,
attorneys, accountants, or other skilled persons selected by the
Resident Trustee in good faith and with due care nor shall it be liable
for anything done, suggested, suffered, or omitted in good faith by it
in accordance with the advice or opinions of such person.
(vii) Except as expressly provided in this Section 2.1, in
accepting and performing on behalf of the Trust hereby created, the
Resident Trustee acts solely as trustee hereunder and not in its
individual capacity, and all persons having any claim against the
Resident Trustee by reason of the transactions contemplated by this
Agreement shall look only to the Trust Assets for payment or
satisfaction thereof except to the extent such claim arose by its own
willful misconduct, negligence or bad faith in the performance of its
duties under this Agreement.
(e) Eligibility Requirements for Resident Trustee. The Resident Trustee
shall at all times be a corporation satisfying the provisions of Section 3807(a)
of the Trust Act; authorized to exercise corporate trust powers; having a
combined capital and surplus of at least $5,000,000 and subject to supervision
or examination by federal or state authorities; provided, however, the net worth
of the parent organization of such corporation satisfying the provisions of
Section 3807(a) of the Trust Act shall be included in the determination of the
combined capital and surplus of such corporation. 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 hereof 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 Resident Trustee shall
cease to be eligible in accordance with the provisions hereof, the Resident
Trustee shall resign immediately in the manner and with the effect specified in
the following paragraph.
(f) Resignation or Removal of Resident Trustee. The Resident Trustee
may at any time resign and be discharged from the trusts hereby created by
giving at least sixty (60) days advance written notice thereof to the Beneficial
Owners and the Managing Trustees; provided, however, that such resignation shall
not become effective unless and until a qualified successor Resident Trustee
shall have been appointed by the Board of Managing Trustees. Such appointment
shall be by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Resident Trustee and one copy to the successor
Resident Trustee. If no successor Resident Trustee shall have been so appointed
and have accepted appointment within such sixty (60) day period after the giving
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of such notice of resignation, the resigning Resident Trustee may apply to the
Court of Chancery of the State of Delaware for the appointment of a successor
Resident Trustee. In addition, if at any time the Resident Trustee shall cease
to be eligible in accordance with the provisions of the preceding paragraph and
shall fail to resign after written request therefore by the Board of Managing
Trustees, or if at any time the Resident Trustee shall be legally unable to act,
or shall be adjudged bankrupt or insolvent, or a receiver of the Resident
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Resident Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Board of
Managing Trustees may remove the Resident Trustee. If the Resident Trustee is
removed under the authority of the immediately preceding sentence, the Board of
Managing Trustees shall promptly appoint a successor Resident Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
outgoing Resident Trustee so removed and one copy to the successor Resident
Trustee. Written evidence of the qualification and acceptance of election or
appointment of a successor Resident Trustee may be filed with the records of the
Trust and in such other offices, agencies, or places as the Resident Trustee may
deem necessary or desirable. Any successor Resident Trustee appointed hereunder
shall promptly file an amendment to the Certificate of Trust with the Secretary
of State of the State of Delaware identifying the name and principal place of
business of such successor Resident Trustee in the State of Delaware.
ARTICLE III.
MANAGING TRUSTEES
SECTION 3.1. GENERAL. Subject to the express limitations herein,
including but not limited to Sections 3.3 and 3.4, the business and affairs of
the Trust shall be managed by or under the direction of the Board of Managing
Trustees designated by the Beneficial Owner. The Beneficial Owner may determine
at any time in its sole and absolute discretion the number of Managing Trustees
to constitute the Board. The authorized number of Managing Trustees may be
increased or decreased by the Beneficial Owner at any time in its sole and
absolute discretion, upon notice to all Managing Trustees, and subject in all
cases to this Article III. The number of Managing Trustees on the date hereof
shall be six, two of which shall be Independent Trustees. The names of the
Managing Trustees who shall serve on the initial Board are: Xxxx Xxxxxxxxx,
Xxxxxxx Xxxxxx, Xxxx X. Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx X. Abedine and Xxxxxx
X. Xxxxxxxxxx. Xxxxxxxx X. Abedine and Xxxxxx X. Xxxxxxxxxx shall serve as the
initial Independent Trustees. Each Managing Trustee elected, designated or
appointed shall hold office until a successor is elected and qualified or until
such Managing Trustee's earlier death, resignation, expulsion or removal.
Managing Trustees need not be a Beneficial Owner. If required by the Trust Act,
the Trustees shall amend the Certificate of Trust of the Trust to reflect
changes in the composition of the Trust's Trustees.
SECTION 3.2. SPECIFIC POWERS AND AUTHORITY.
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(a) Duties. It shall be the duty of the Managing Trustees to discharge
(or cause to be discharged) all responsibilities of the Trust under this
Agreement, and the Basic Documents to which the Trust is a party and to
administer the Trust and the Trust Assets, subject to the terms hereof,
including, without limitation, Section 1.4(b). The Managing Trustees shall have
no duties other than as specified herein and in the agreements to which the
Trust is a party and no implied duties or obligations shall be read into this
Agreement. The Managing Trustees shall not manage, control, use, sell, dispose
of or otherwise deal with the Trust or any part of the Trust Assets except (i)
in accordance with the powers granted pursuant to this Agreement and (ii) in
accordance with the agreements to which the Trust is a party. The Managing
Trustees shall not take any action that is inconsistent with the purposes of the
Trust as provided in Section 1.4. The Board of Managing Trustees may authorize
and effect distributions to the Beneficial Owner at such times and in such
amounts as they shall deem appropriate provided that no such distribution shall
be in contravention of any Basic Documents or cause the Trust not to be solvent.
Subject to the express limitations herein, the Managing Trustees shall have the
power and authority to do all other actions and things and execute and deliver
all instruments incident to the foregoing powers, and to exercise all powers
that they deem necessary, useful, or desirable to carry on the purposes of the
Trust as provided in Section 1.4 or to carry out the provisions of this
Agreement, even if such powers are not specifically provided for herein.
(b) Meeting of the Board of Managing Trustees. The Board of Managing
Trustees of the Trust may hold meetings, both regular and special, within or
outside the State of Delaware. The Board of Managing Trustees shall hold at
least one regular meeting each year. Regular meetings of the Board may be held
without notice at such time and at such place as shall from time to time be
determined by the Board. Special meetings of the Board may be called by a
Managing Trustee on not less than one day's notice to each Managing Trustee by
telephone, facsimile, mail, telegram or any other means of communication.
(c) Quorum: Acts of the Board. At all meetings of the Board, a majority
of the Managing Trustees shall constitute a quorum for the transaction of
business and, except as otherwise provided in any other provision of this
Agreement, the act of a majority of the Managing Trustees present at any meeting
at which there is a quorum shall be the act of the Board. If a quorum shall not
be present at any meeting of the Board, the Managing Trustees present at such
meeting may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present. Any action
required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee, as
the case may be.
(d) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Trust.
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(e) Committees of Managing Trustees.
(i) The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees,
each committee to consist of one or more of the
Managing Trustees of the Trust. The Board may
designate one or more Managing Trustees as alternate
members of any committee, who may replace any absent
or disqualified member at any meeting of the
committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at
any meeting and not disqualified from voting, whether
or not such members constitute a quorum, may
unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or
disqualified member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, and subject to, in all
cases, Sections 1.4, 3.3, and 3.4 shall have and may
exercise all the powers and authority of the Board in
the management of the business and affairs of the
Trust. Such committee or committees shall have such
name or names as may be determined from time to time
by resolution adopted by the Board. Each committee
shall keep regular minutes of its meetings and report
the same to the Board when required.
(f) Compensation of Managing Trustees; Expenses. The Board shall have
the authority to fix the compensation of Managing Trustees. The Managing
Trustees may be paid their expenses, if any, of attendance at meetings of the
Board, which may be a fixed sum for attendance at each meeting of the Board or a
stated salary as Managing Trustee. No such payment shall preclude any Managing
Trustee from serving the Trust in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
(g) Removal of Managing Trustees. Unless otherwise restricted by law,
and subject to Sections 3.3 and 3.4, any Managing Trustee or the entire Board of
Managing Trustees may be removed or expelled, with or without cause, at any time
by the Beneficial Owner, and, any vacancy caused by any such removal or
expulsion may be filled by action of the Beneficial Owner.
(h) Managing Trustees as Agents. To the extent of their powers set
forth in this Agreement and subject to Sections 3.3 and 3.4, the Managing
Trustees are agents of the Trust for the purpose of the Trust's business, and
the actions of the Managing Trustees taken in accordance with such powers set
forth in this Agreement shall bind the Trust. Except as provided in this
Agreement or in a resolution of the Managing Trustees, a Managing Trustee may
not bind the Trust.
SECTION 3.3. RESTRICTIONS.
(a) This Section 3.3 is being adopted in order to comply with certain
provisions required
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in order to qualify the Trust as a "special purpose" entity.
(b) No Beneficial Owner or Managing Trustee shall, so long as any Trust
Obligation is outstanding, amend, alter, change or repeal the definition of
"Independent Trustee," the definition of "Material Action," or Sections 1.4,
3.1, 3.2, 3.3, 3.4, 4.1, 6.4, 7.1, 8.1, 8.2 or Schedule A of this Agreement
without the unanimous written consent of the Board (including all Independent
Trustees). Subject to this Section 3.3, the Beneficial Owners and the Managing
Trustees reserve the right to amend, alter, change or repeal any provisions
contained in this Agreement in accordance with Section 7.1.
(c) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Trust, the Beneficial Owner, the
Board, any Officer or any other Person, neither the Beneficial Owner nor the
Board nor any Officer nor any other Person shall be authorized or empowered, nor
shall they cause the Trust, without the prior unanimous written consent of the
Beneficial Owner and all members of the Board (including all Independent
Trustees), to take any Material Action, provided, however, that the Board may
not vote on, or authorize the taking of, any Material Action, unless there are
at least two Independent Trustees then serving in such capacity.
(d) The Board and the Beneficial Owner shall cause the Trust to do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Trust shall not be required to preserve any such right or
franchise if: (1) the Board shall determine that the preservation thereof is no
longer desirable for the conduct of its business and that the loss thereof is
not disadvantageous in any material respect to the Trust and (2) the Rating
Agency Condition is satisfied. The Board also shall cause the Trust to:
(i) maintain its own separate office, books and records
and bank accounts;
(ii) at all times hold itself out to the public and all
other Persons as a legal entity separate from the
Beneficial Owner, the Bank and any other Person;
(iii) have a Board of Managing Trustees separate from that
of the Beneficial Owner, the Bank and any other
Person;
(iv) file its own tax returns, if any, as may be required
under applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or
returns or (2) not treated as a division for tax
purposes of another taxpayer, and pay any taxes so
required to be paid under applicable law;
(v) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other Person;
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(vi) conduct its business in its own name and strictly
comply with all organizational formalities to
maintain its separate existence;
(vii) maintain separate financial statements and prepare
and maintain its financial records in accordance with
generally accepted accounting principles;
(viii) pay its own liabilities only out of its own funds;
(ix) maintain an arm's length relationship with the Bank,
its other Affiliates and the Beneficial Owner;
(x) pay the salaries of its own employees, if any;
(xi) not hold out its credit or assets as being available
to satisfy the obligations of others;
(xii) allocate fairly and reasonably any overhead for
shared office space;
(xiii) use separate stationery, invoices and checks;
(xiv) except as contemplated by the Basic Documents, not
pledge its assets for the benefit of any other
Person;
(xv) correct any known misunderstanding regarding its
separate identity;
(xvi) maintain adequate capital in light of its
contemplated business purpose, transactions and
liabilities; provided, however, that, as of the date
of any fiscal quarter, the capital of the Trust shall
be at least equal to 2% of the total assets of the
Trust;
(xvii) cause its Board of Managing Trustees to meet at least
annually or act pursuant to written consent and keep
minutes of such meetings and actions and observe all
other Delaware business trust formalities;
(xviii) not acquire any securities of the Beneficial Owner;
and
(xix) cause the Managing Trustees, Officers, agents and
other representatives of the Trust to act at all
times with respect to the Trust consistently and in
furtherance of the foregoing and in the best
interests of the Trust.
Failure of the Trust, or the Beneficial Owner or Board on
behalf of the Trust, to comply with any of the foregoing covenants or
any other covenants contained in
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this Agreement shall not affect the status of the Trust as a separate
legal entity or the limited liability of the Beneficial Owner.
(e) So long as any Trust Obligation is outstanding, the Board shall not
cause or permit the Trust to:
(i) except as contemplated by the Basic Documents,
guarantee any obligation of any Person, including any
Affiliate;
(ii) engage, directly or indirectly, in any business other
than the actions required or permitted to be
performed under Section 1.4, the Basic Documents or
this Section 3.3;
(iii) incur, create or assume any indebtedness other than
as expressly permitted under the Basic Documents;
(iv) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or securities
of, any Person, except that the Trust may invest in
those investments permitted under the Basic Documents
and may make any advance required or expressly
permitted to be made pursuant to any provisions of
the Basic Documents and permit the same to remain
outstanding in accordance with such provisions;
(v) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger,
asset sale or transfer of beneficial interests other
than such activities as are expressly permitted
pursuant to any provision of the Basic Documents; or
(vi) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or
other).
SECTION 3.4. INDEPENDENT TRUSTEES.
As long as any Trust Obligation is outstanding, the Beneficial
Owner shall cause the Trust at all times to have at least two Independent
Trustees who will be appointed by the Beneficial Owner. To the fullest extent
permitted by law, the Independent Trustees shall consider only the interests of
the Trust, including its respective creditors, in acting or otherwise voting on
the matters referred to in Section 3.3(c). No resignation or removal of an
Independent Trustee, and no appointment of a successor Independent Trustee,
shall be effective until such successor shall have accepted his or her
appointment as an Independent Trustee by a written instrument. In the event of a
vacancy in the position of Independent Trustee, the Beneficial Owner shall, as
soon as practicable, appoint a successor Independent Trustee. All right, power
and authority of the Independent Trustees shall be limited to the extent
necessary to exercise those rights and perform those duties specifically set
forth in this Agreement. Except as provided in the second sentence of this
Section 3.4, in
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exercising their rights and performing their duties under this Agreement, any
Independent Trustee shall have a fiduciary duty of loyalty and care similar to
that of a director of a business corporation organized under the General
Corporation Law of the State of Delaware. No Independent Trustee shall at any
time serve as trustee in bankruptcy for any Affiliate of the Trust.
SECTION 3.5. REPORTS.
(a) Within 60 days after the end of each fiscal quarter, the Board
shall cause to be prepared an unaudited report setting forth as of the end of
such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a
balance sheet of the Trust; and
(ii) unless such quarter is the last fiscal quarter, an
income statement of the Trust for such fiscal
quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed to the Beneficial Owner, within 90 days after the end of each fiscal
year, an audited or unaudited report setting forth as of the end of such fiscal
year:
(i) a balance sheet of the Trust;
(ii) an income statement of the Trust for such fiscal
year; and
(iii) a statement of the Beneficial Owner's capital
account.
(c) The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Trust's independent accountants, if any, to prepare and
transmit to the Beneficial Owner as promptly as possible any such tax
information as may be reasonably necessary to enable the Beneficial Owner to
prepare its federal, state and local income tax returns relating to such fiscal
year.
SECTION 3.6. OFFICERS.
(a) Officers. The Officers of the Trust shall be designated by the
Board and shall consist of at least a President, a Secretary and a Treasurer.
The Board of Managing Trustees may also choose one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any additional or successor
Officers of the Trust shall be chosen by the Board. Any number of offices may be
held by the same person. The Board may appoint such other Officers and agents as
it shall deem necessary or advisable who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. The salaries of all Officers and agents of the
Trust shall be fixed by or in the manner prescribed by the Board. The Officers
of the Trust shall hold office until their successors are chosen and qualified.
Any Officer may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board. Any vacancy occurring in any office
of the Trust shall be filled by the Board. The Officers designated by the Board
on the date hereof are listed on Schedule B hereto.
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(b) President. The President shall be the chief executive officer of
the Trust, shall preside at all meetings of the Board, shall be responsible for
the general and active management of the business of the Trust and shall see
that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all Trust Obligations, bonds, notes, mortgages and other contracts,
except: (i) where required or permitted by law or this Agreement to be otherwise
signed and executed, including Section 1.4(b); (ii) where signing and execution
thereof shall be expressly delegated by the Board to some other Officer of the
Trust, and (iii) as otherwise permitted in Section 3.6(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Managing Trustees, or in the absence of any designation, then
in the order of their election), shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Vice Presidents, if any, shall perform such
other duties and have such other powers as the Board may from time to time
prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Trust.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Trust and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Beneficial Owner, if any, and meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Trust funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Trust and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Trust in such depositories as may be designated by the Board. The Treasurer
shall disburse the funds of the Trust as may be ordered by the Board, taking
proper vouchers for such disbursements, and shall render to the President and to
the Board, at its regular meetings or when the Board so requires, an account of
all of the Treasurer's transactions and of the financial condition of the Trust.
The Assistant Treasurer, or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board (or if there be no such
determination, then in the order of their election), shall, in the absence of
the Treasurer or in the event of the Treasurer's inability to act, perform the
duties and exercise the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement,
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are agents of the Trust for the purpose of the Trust's business and, subject to
Section 3.3, the actions of the Officers taken in accordance with such powers
shall bind the Trust.
(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Managing Trustee and Officer shall have a fiduciary duty
of loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
ARTICLE IV.
BENEFICIAL INTERESTS IN THE TRUST
SECTION 4.1. BENEFICIAL INTERESTS.
(a) A Beneficial Interest Certificate, in the form of Exhibit A
attached hereto, will represent an exclusive, undivided beneficial interest in
the Trust. All Beneficial Interest Certificates issued hereunder shall be fully
paid and nonassessable. Every Beneficial Owner, by virtue of having purchased or
otherwise acquired a Beneficial Interest Certificate, shall be deemed to have
expressly consented and agreed to be bound by the terms of this Agreement. No
certificates certifying the ownership of Beneficial Interest Certificates need
be issued except as the Board of Managing Trustees otherwise determine from time
to time. The ownership of Beneficial Interest Certificates shall be recorded by
the Secretary in the books of the Trust, which shall be conclusive as to who are
the Beneficial Owners. The Board of Managing Trustees is authorized to issue a
replacement Beneficial Interest Certificate for any Beneficial Interest
Certificate which has been lost, stolen or destroyed.
(b) In the event of any voluntary or involuntary liquidation,
dissolution, or winding up of, or any distribution of the assets of, the Trust,
each Beneficial Owner shall be entitled to receive, after paying or making
reasonable provision for the creditors of the Trust as set forth in Section
3808(e) of the Trust Act, ratably with each other Beneficial Owner, that portion
of the Trust Assets available for distribution to the Beneficial Owners that
represents the same percentage ownership as the Beneficial Interest Certificates
held by such Beneficial Owner represents in the Trust.
(c) All Beneficial Interest Certificates shall be personal property
entitling the Beneficial Owner only to those rights provided in this Agreement.
The legal and equitable ownership of the Trust Assets is vested exclusively in
the Trust as herein provided, and the Beneficial Owners shall have no interest
therein other than the beneficial interest in the Trust conferred by their
Beneficial Interest Certificates and shall have no right to compel any
partition, division, dividend, or distribution of the Trust or any of the Trust
Assets. The death, dissolution or termination of a Beneficial Owner shall not,
in and of itself, terminate the Trust or give such Beneficial Owner's legal
representative or successor any rights against other Beneficial Owners, the
Trustees or the Trust Assets, except the right, exercised in accordance with
4.1(a) above, to receive a new Beneficial Interest Certificate in exchange for
the certificate held by such deceased, dissolved or terminated
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Beneficial Owner. Except as specifically provided in this Agreement, the
Beneficial Owners, by reason of their status as such, shall have no right to
participate in or direct the management or control of the business of the Trust
or to act for or bind the Trust or any Trustee or otherwise to transact any
business on behalf of the Trust.
(d) The Beneficial Interest Certificates are freely transferable except
as provided in Sections 4.1(e) and 4.1(f) below.
(e) No proposed transfer of a Beneficial Interest Certificate shall be
effective unless such transfer is exempt from the registration requirements of
the Securities Act and any state securities laws and the proposed transferor
shall have delivered to the Trust an opinion of counsel to such effect. Such
opinion of counsel must be acceptable, as to form, substance, and issuing
counsel, to the Board of Managing Trustees. Additionally, the proposed
transferee must either (A) provide a certificate to the Trust to the effect that
the proposed transferee is not an "employee benefit plan" within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "plan" within the meaning of Section 4975(e)(1) of the Code (any
such plan or employee benefit plan, a "Plan") and is not directly or indirectly
purchasing the Beneficial Interest Certificates on behalf of, as investment
manager of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(B) provide a certificate to the Trust to the effect that the proposed
transferee is acquiring the Beneficial Interest Certificates for its own account
and no part of the assets used to acquire the Beneficial Interest Certificates
constitute assets of a Plan; or (C) furnish to the Trust an opinion of counsel
acceptable to such persons that (i) the proposed transfer will not cause any
assets of the Trust to be deemed assets of a Plan, and (ii) the proposed
transfer will not give rise to a transaction described in Section 406 of ERISA
or Section 4975(c)(1) of the Code for which a statutory or administrative
exemption is unavailable.
(f) No proposed transfer of a Beneficial Interest Certificate shall be
effective if such transfer would result in the Trust having more than 1
Beneficial Owner unless such transfer has been approved by the Board of Managing
Trustees. In addition, no entity that constitutes a partnership, grantor trust
or S corporation for federal income tax purposes may acquire a Beneficial
Interest Certificate if (i) substantially all of the value of the interest of a
person owning an interest in such entity would be attributable to the entity's
(direct or indirect) interest in the Trust, and (ii) a principal purpose of the
use of the tiered arrangement is to permit the Trust to satisfy the 100-person
limitation in paragraph (h)(1)(ii) of Section 1.7704-1 of the Treasury
Regulations promulgated under the Code. The restriction set forth in this
Section 4.1(f) may be modified by the Trust if there is delivered to the
Beneficial Owner an opinion of counsel to the effect that the modification would
not cause the Trust to be treated as a publicly traded partnership that is
taxable as a corporation for federal income tax purposes or registrable as an
investment company under the Investment Company Act of 1940, as amended. No
proposed transfer or issuance of a Beneficial Interest Certificate, any interest
therein, or any financial instrument or contract the value of which is
determined by reference to either a Beneficial Interest Certificate or any
interest therein, which is otherwise permitted hereunder shall be effective
unless and until the Bank has delivered to the Master Trust Trustee a Tax
Opinion (as defined in the Pooling and Servicing Agreement) with respect to such
transfer or issuance.
(g) The Beneficial Owner may assign its interest hereunder with
notification to each Rating Agency.
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(h) Upon the effectiveness of the Conversion, a Managing Trustee shall
execute a single Beneficial Interest Certificate and deliver it to Fleet Credit
Card. Fleet Credit Card, in its capacity as the holder of the Beneficial
Interest Certificate, shall be the sole beneficial owner of the Trust. A
Beneficial Interest Certificate shall not entitle its holder to any benefit
under this Agreement, or be valid for any purpose, unless the Beneficial
Interest Certificate shall be in substantially the form set forth in Exhibit A
hereto, and shall be duly executed by a Managing Trustee of the Trust. When a
Beneficial Interest Certificate is duly executed by a Managing Trustee and
issued in accordance with this Agreement, the Beneficial Interest Certificate
will be fully paid, validly issued, non-assessable and entitled to the benefits
of this Agreement.
ARTICLE V.
BENEFICIAL OWNERS
SECTION 5.1. MEETINGS OF BENEFICIAL OWNERS. There shall be no annual
meetings of the Beneficial Owners. Except as otherwise provided in this
Agreement, special meetings of Beneficial Owners may be called by the Managing
Trustees on not less than one day's notice to each Beneficial Owner by
telephone, facsimile, mail, telegram or any other means of communication. If at
any time the Trust does not have Managing Trustees as required by this
Agreement, the Officers of the Trust shall promptly call a special meeting of
the Beneficial Owners for the election of a successor Managing Trustee or
Managing Trustees. Any meeting may be adjourned and reconvened as the Managing
Trustees determine.
SECTION 5.2. VOTING RIGHTS OF BENEFICIAL OWNERS.
(a) The Beneficial Owners shall be entitled to vote only on the matters
expressly set forth herein.
(b) The holders of not less than a majority in percentage of the
interests represented by the Beneficial Interest Certificates shall be a quorum
for the transaction of business at a Beneficial Owners' meeting. Any lesser
number, however, shall be sufficient for adjournment, and any adjourned session
or sessions may be held within ninety (90) days after the date set for the
original meeting without the necessity of further notice. Except where a larger
vote is required by any provision of this Agreement, and subject to any
applicable requirements of law, the holders of a majority in percentage of
interests represented by the Beneficial Interest Certificates voted shall decide
any question.
(c) Any action required or permitted to be taken at any meeting may be
taken without a meeting if a consent in writing, setting forth such action, is
signed by the holders of a majority in percentage of the interests represented
by the Beneficial Interest Certificates (or such larger proportion thereof as
shall be required by any express provision of this Agreement) and such consent
is filed with the records of the Trust.
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ARTICLE VI.
LIABILITY OF BENEFICIAL OWNERS, TRUSTEES,
OFFICERS, EMPLOYEES, AND AGENTS AND
TRANSACTIONS BETWEEN THEM AND THE TRUST
SECTION 6.1. LIMITATION OF BENEFICIAL OWNER LIABILITY. No Beneficial
Owner shall be liable for any debt, claim, demand, judgment, or obligation of
any kind of, against or with respect to the Trust by reason of its being a
Beneficial Owner, nor shall any Beneficial Owner by reason of its status as
such, be subject to any personal liability whatsoever, in tort, contract or
otherwise, to any Person in connection with the Trust Assets or the affairs of
the Trust.
SECTION 6.2. LIMITATION OF TRUSTEE LIABILITY. A Trustee, when acting in
such capacity, shall not be personally liable to any Person other than the Trust
or a Beneficial Owner for any act, omission, or obligation of the Trust or any
Trustee. To the maximum extent that Delaware law in effect from time to time
permits limitation of the liability of trustees of a business trust, no Trustee
shall be liable to the Trust or to any Beneficial Owner for monetary damages for
breach of any duty (including, without limitation, fiduciary duties) as a
Trustee, except for acts or omissions of such Trustee that involve actual fraud,
willful misconduct, gross negligence (on the part of a Managing Trustee),
negligence (on the part of the Resident Trustee) or bad faith in performing its
or his duties. Neither the amendment nor repeal of this Section 6.2 nor the
adoption or amendment of any other provision of this Agreement inconsistent with
this Section 6.2 shall apply to or affect in any respect the applicability of
the immediately preceding sentence with respect to any act or failure to act
that occurred prior to such amendment, repeal, or adoption.
SECTION 6.3. EXPRESS EXCULPATORY CLAUSES IN INSTRUMENTS. Neither the
Beneficial Owners nor the Trustees, Officers, employees or agents of the Trust
shall be liable under any written instrument creating an obligation of the
Trust, and all Persons shall look solely to the Trust Assets for the payment of
any claim under or for the performance of that instrument. All such written
instruments shall contain an express exculpatory clause to the foregoing effect.
The omission of the foregoing exculpatory language from any instrument shall not
affect the validity or enforceability of such instrument and shall not render
any Beneficial Owner, Trustee, Officer, employee, or agent of the Trust liable
thereunder to any third party, nor shall any Trustee, Officer, employee, or
agent of the Trust be liable to anyone for such omission.
SECTION 6.4. INDEMNIFICATION.
(a) Neither the Beneficial Owner nor the Resident Trustee nor the
Independent Trustees nor any Officer, Managing Trustee, employee or agent of the
Trust nor any employee, representative, agent or Affiliate of the Beneficial
Owner, the Resident Trustee or the Independent Trustees (collectively, the
"Covered Persons") shall be liable to the Trust or any other Person who has an
interest in or claim against the Trust for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Covered Person in
good faith on behalf of the Trust and in a manner reasonably believed to be
within the scope of the authority conferred on such Covered
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Person by this Agreement, except that a Covered Person shall be liable for any
such loss, damage or claim incurred by reason of such Covered Person's gross
negligence (or negligence with respect to the Resident Trustee) or willful
misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Trust for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Trust and in a
manner reasonably believed to be within the scope of the authority conferred on
such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence (or
negligence with respect to the Resident Trustee) or willful misconduct with
respect to such acts or omissions; provided, however, that any indemnity under
this Section 6.4 by the Trust shall be provided out of and to the extent of
Trust Assets only, and the Beneficial Owner shall not have personal liability on
account thereof; and provided further, that so long as any Trust Obligation is
outstanding, no indemnity payment from funds of the Trust (as distinct from
funds from other sources, such as insurance) of any indemnity under this Section
6.4 shall be payable from amounts allocable to any other Person pursuant to the
Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Trust
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Trust of an undertaking by or on behalf of the Covered
Person to repay such amount if it shall be determined that the Covered Person is
not entitled to be indemnified as authorized in this Section 6.4.
(d) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person that is a party to or is otherwise bound by
this Agreement, a Covered Person acting under this Agreement shall not be liable
to the Trust or to any such other Covered Person for its good faith reliance on
the provisions of this Agreement or any such approval or authorization granted
by the Trust or any other Covered Person. The provisions of this Agreement, to
the extent that they restrict the duties and liabilities of a Covered Person
otherwise existing at law or in equity, are agreed by the Beneficial Owner to
replace such other duties and liabilities of such Covered Person.
(e) So long as any Trust Obligation is outstanding, no expense of the
Trust shall be payable from amounts allocable to any other Person pursuant to
the Basic Documents.
(f) The indemnification contained in this Section 6.4 shall survive (i)
the termination of the Trust to the extent allowed by law and (ii) any
resignation or removal of any Trustee.
ARTICLE VII.
AMENDMENTS; REORGANIZATION; MERGER, ETC.
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SECTION 7.1. AMENDMENTS.
(a) Subject to Sections 3.3 and 3.4 and to the extent not inconsistent
herewith, the Board of Managing Trustees may at any time amend this Agreement in
writing to reflect: (a) a change to effect or maintain the qualification of the
Trust; (b) a change in the name of the Trust or the location of the principal
place of business of the Trust; (c) a change that is (i) of an inconsequential
nature and does not adversely affect the Beneficial Owners or the holders of any
Trust Obligation in any material respect; (ii) necessary or desirable to cure
any ambiguity, to correct or supplement any provision of this Agreement that
would be inconsistent with any other provisions of this Agreement, or to make
any other provision with respect to matters or questions arising under this
Agreement that will not be inconsistent with the provisions of this Agreement;
(iii) necessary or desirable to satisfy any requirements, conditions or
guidelines contained in any opinion, directive, order, ruling, or regulation of
any federal, state, or local agency or contained in any federal, state, or local
law; or (iv) required or contemplated by this Agreement; or (d) any other
amendments similar to the foregoing. Subject to Section 3.3, other amendments to
this Agreement require the recommendation of the Board of Managing Trustees and
the affirmative vote of Beneficial Owners holding Beneficial Interest
Certificates representing not less than two-thirds (2/3) of the beneficial
interests in the Trust. Notwithstanding the foregoing, no rights or powers
afforded to the Resident Trustee hereunder shall be modified, and no additional
obligation or duty shall be imposed on the Resident Trustee, without its prior
written consent. The Board of Managing Trustees shall forward copies of all
amendments to the Resident Trustee as soon as practicable following the date of
such amendment.
(b) Notwithstanding anything to the contrary in this Agreement, so long
as any Trust Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the Rating Agency Condition is
satisfied, except to cure any ambiguity.
(c) Subject to the terms hereof, the Certificate of Trust shall be
subject to amendment or other modification by the Trustees in accordance with
the provisions of the Trust Act.
ARTICLE VIII.
DURATION AND TERMINATION OF TRUST
SECTION 8.1. DURATION OF TRUST. The Trust shall continue perpetually
unless terminated pursuant to Section 8.2 hereof or pursuant to any applicable
provision of the Trust Act.
SECTION 8.2. TERMINATION OF TRUST.
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(a) Subject to the restrictions on termination set forth in Section 3.3
and provided there are no amounts owed by the Trust under any Basic Document,
the Trust may be dissolved by the affirmative vote of Beneficial Owners holding
not less than two-thirds (2/3) of the Beneficial Interest Certificates. Upon the
dissolution of the Trust:
(i) The Trust shall carry on no business except for the
purpose of winding up its affairs.
(ii) The Managing Trustees shall proceed to wind up the
affairs of the Trust and all of the powers of the Trustees under this
Agreement shall continue, including the powers to fulfill or discharge
the Trust's contracts, collect its assets, sell, convey, assign,
exchange, transfer, or otherwise dispose of all or any part of the
remaining Trust Assets to one or more Persons at public or private sale
for consideration that may consist in whole or in part of cash or other
property of any kind, discharge or pay its liabilities to creditors as
provided in Section 3808(e) of the Trust Act, and do all other acts
appropriate to liquidate its business.
(b) After dissolution of the Trust, the liquidation of its business,
the satisfaction of its creditors as provided in the Trust Act, and the
distribution to the Beneficial Owners as herein provided, a majority of the
Managing Trustees shall cause to be executed and filed with the Trust's records,
the Secretary of State of the State of Delaware, and elsewhere as the Managing
Trustees determine to be necessary or appropriate, a certificate of cancellation
and such other documents as may be required by law certifying that the Trust has
been duly terminated, and the Trustees shall be discharged from all liabilities
and duties hereunder, and the rights and interests of all Beneficial Owners
shall cease provided that the indemnities of Section 6.4 hereof shall survive to
the extent allowed by law.
(c) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Beneficial Owner shall not, in and of itself, result in the
termination or dissolution of the Trust.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. GOVERNING LAW. This Agreement is executed by the
Beneficial Owner and the undersigned Trustees with reference to the laws of the
State of Delaware, and the rights of all parties and the validity, construction,
and effect of every provision hereof shall be subject to and construed according
to the laws of the State of Delaware without regard to conflicts of law
provisions thereof, provided, however, that the Trustees and Beneficial Owners
intend that the provisions hereof shall control over any contrary or limiting
statutory or common law of the State of Delaware (other than the Trust Act) and
that, to the maximum extent permitted by applicable law, there shall not be
applicable to the Trust, the Trustees, or this Agreement any provision of the
laws (statutory or common) of the State of Delaware (other than the Trust Act)
pertaining to trusts that relate to or regulate in a manner inconsistent with
the terms hereof: (i) the filing with any court or governmental body or agency
of trustee accounts or schedules of trustee fees and charges,
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(ii) affirmative requirements to post bonds for trustees, officers, agents, or
employees of a trust, (iii) the necessity for obtaining court or other
governmental approval concerning the acquisition, holding, or disposition of
real or personal property, (iv) fees or other sums payable to trustees,
officers, agents, or employees of a trust, (v) the allocation of receipts and
expenditures between income and principal, (vi) restrictions or limitations on
the permissible nature, amount, or concentration of trust investments or
requirements relating to the titling, storage, or other manner of holding of
trust assets, or (vii) the establishment of fiduciary or other standards or
responsibilities or limitations on the acts or powers of trustees that are
inconsistent with the limitations on liability or authorities and powers of the
Trustees set forth or referenced in this Agreement. Sections 3540 and 3561 of
Title 12 of the Delaware Code shall not apply to the Trust. Subject to all of
the terms and provisions of this Agreement (i) the Trust shall be of the type
commonly called a "business trust," and without limiting the provisions hereof,
the Trust may exercise all powers that are ordinarily exercised by such a trust
under Delaware law and (ii) the Trust specifically reserves the right to
exercise any of the powers or privileges afforded to business trusts, and the
absence of a specific reference herein to any such power, privilege, or action
shall not imply that the Trust may not exercise such power or privilege or take
such action.
SECTION 9.2. RELIANCE BY THIRD PARTIES. Any certificate shall be final
and conclusive as to any Persons dealing with the Trust if executed by an
individual who, according to the records of the Trust, appears to be an Officer
of the Trust or a Trustee, and if certifying to (a) the number or identity of
Trustees, Officers of the Trust, or Beneficial Owners, (b) the due authorization
of the execution of any document; (c) the action or vote taken, and the
existence of a quorum, at a meeting of Trustees or Beneficial Owners; (d) the
action or vote taken by written instrument without a meeting; (e) a copy of this
Agreement as a true and complete copy as then in force; (f) an amendment to this
Agreement; (g) the termination of the Trust; or (h) the existence of any fact or
facts that relate to the affairs of the Trust. No purchaser, lender, transfer
agent, or other Person shall be bound to make any inquiry concerning the
validity of any transaction purporting to be made on behalf of the Trust by the
Trustees or by any Officer or agent of the Trust.
SECTION 9.3. PROVISIONS HELD INVALID OR UNENFORCEABLE. If any provision
of this Agreement shall be held invalid or unenforceable in any jurisdiction,
such holding shall not in any manner affect or render invalid or unenforceable
such provision in any other jurisdiction or any other provision of this
Agreement in any jurisdiction.
SECTION 9.4. CONSTRUCTION. In this Agreement, unless the context
otherwise requires, words used in the singular or in the plural include both the
plural and singular, and words denoting any gender include all genders. The
title and headings of different parts of this Agreement are inserted for
convenience and shall not affect the meaning, construction, or effect of this
Agreement.
SECTION 9.5. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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SECTION 9.6. NON-PETITION COVENANT. To the fullest extent permitted by
applicable law, each Managing Trustee and the Resident Trustee and each
Beneficial Owner, by accepting its Beneficial Interest Certificate, hereby
covenants and agrees that it will not at any time institute against the Trust,
or join in any institution against the Trust of, any bankruptcy proceedings
under any United States federal or state bankruptcy or similar law in connection
with any obligations relating to the Basic Documents, this Agreement, or any of
the documents or agreements related to this Agreement.
SECTION 9.7. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
parties hereto and its successors and permitted assigns.
SECTION 9.8. OTHER BUSINESS. The Beneficial Owner, the Trustees and any
Affiliate of the Beneficial Owner or the Trustees may engage in or possess an
interest in other business ventures of every kind and description, independently
or with others. The Trust shall not have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
SECTION 9.9. TRUST ASSETS. Except as otherwise expressly provided in
this Agreement, to the fullest extent permitted by law, the Beneficial Owner
hereby irrevocably waives any right or power that such Person might have to
cause the Trust or any of its assets to be partitioned, to cause the appointment
of a receiver for all or any portion of the assets of the Trust, to compel any
sale of all or any portion of the assets of the Trust pursuant to any applicable
law or to file a complaint or to institute any proceeding at law or in equity to
cause the dissolution, liquidation, winding up or termination of the Trust. The
Beneficial Owner shall not have any interest in any specific assets of the
Trust, and the Beneficial Owner shall not have the status of a creditor with
respect to any distribution pursuant hereto. The interest of the Beneficial
Owner in the Trust is personal property.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the day and year first above written.
FLEET CREDIT CARD SERVICES, L.P., as
Beneficial Owner
By: Fleet Credit Card Holdings, Inc., its general
partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President,
Chief Financial
Officer and Treasurer
WILMINGTON TRUST COMPANY, as Resident Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Administrative Account Manager
By: /s/ Xxxx Rodhorst
--------------------------------------------------
Xxxx Xxxxxxxxx, as Managing Trustee
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxxx Xxxxxx, as Managing Trustee
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------------
Xxxx X. Xxxxxxx, as Managing Trustee
By: /s/ Xxxxxxxx Xxxx
--------------------------------------------------
Xxxxxxxx Xxxx, as Managing Trustee
By: /s/ Xxxxxxx X. Abedine
--------------------------------------------------
Xxxxxxxx X. Abedine, as Independent Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxxxxx, as Independent Trustee
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EXHIBIT A
Form of Certificate of Beneficial Interest
[Exhibit Begins Next Page]
EXHIBIT A
FORM OF BENEFICIAL INTEREST CERTIFICATE
THIS BENEFICIAL INTEREST CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS BENEFICIAL
INTEREST CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY
IN A TRANSACTION WHICH IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF APPLICABLE
STATE SECURITIES LAWS AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.1 OF
THE TRUST AGREEMENT REFERRED TO HEREIN.
BENEFICIAL INTEREST CERTIFICATE
100 % Beneficial Interest
This certifies that Fleet Credit Card Services, L.P. is the registered
owner of the above indicated beneficial interest in Fleet Credit Card Funding
Trust (the "Trust"), a Delaware business trust organized and existing under the
Delaware Business Trust Act, Title 12, Chapter 38 of the Delaware Code, 12 Del.
Code " 3801, et seq. This Beneficial Interest Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement of the
Trust dated as of March 28, 2002 (the "Trust Agreement"), to which Trust
Agreement the holder of this Beneficial Interest Certificate, by virtue of the
acceptance hereof, assents and by which such holder is bound.
Capitalized terms used and not otherwise defined herein have the
meanings set forth in the Trust Agreement.
This Beneficial Interest Certificate does not represent an obligation
of, or an interest in, any Beneficial Owner, any Managing Trustee, or the
Resident Trustee, and the Beneficial Interest Certificates are not insured or
guaranteed by any governmental agency.
By virtue of having purchased or otherwise acquired this Beneficial
Interest Certificate, the holder of this Beneficial Interest Certificate shall
be deemed to have expressly consented and agreed to be bound by the terms of the
Trust Agreement. The ownership of each Beneficial Interest Certificate shall be
recorded in the books of the Trust, which shall be conclusive as to the identity
of the Beneficial Owners.
In the event of any voluntary or involuntary liquidation, dissolution,
or winding up of, or any distribution of the assets of, the Trust, each
Beneficial Owner shall be entitled to receive, after the Trust has paid or made
reasonable provision for the creditors of the Trust as set forth in Section
3808(e) of the Delaware Business Trust Act, ratably with each other Beneficial
Owner, that portion of the Trust Assets, available for distribution to the
Beneficial Owner that represents the same percentage ownership as the Beneficial
Interest Certificates held by such Beneficial Owner. The holders of Beneficial
Interest Certificates shall be entitled to vote only on such matters as set
forth in Section 5.2 of the Trust Agreement, and each holder of a Beneficial
Interest Certificate shall have the right to vote its percentage ownership in
the Trust.
Subject to the Trust Agreement, the Board of Managing Trustees may from
time to time declare and pay to the Beneficial Owners such dividends or
distributions in cash, property or other assets of the Trust, including any
Trust Assets, or from any other source as the Board of Managing Trustees in its
discretion shall determine.
All Beneficial Interest Certificates shall be personal property
entitling the Beneficial Owners only to those rights provided in the Trust
Agreement. All legal and equitable ownership of the Trust Assets is vested
exclusively in the Trust as provided in the Trust Agreement, and the Beneficial
Owners shall have no interest therein other than the beneficial interest in the
Trust conferred by their Beneficial Interest Certificate(s) and shall have no
right to compel any partition, division, dividend, or distribution of the Trust
or any of the Trust Assets. The dissolution or termination of a Beneficial Owner
shall not, in and of itself, terminate the Trust or give such Beneficial Owner's
legal representative any rights against other Beneficial Owners, the Trustees or
the Trust Assets, except the right, exercised in accordance with applicable
provisions of the Trust Agreement, to receive a new Beneficial Interest
Certificate in exchange for the certificate held by such Beneficial Owner.
The Beneficial Interest Certificates are freely transferable, provided,
however, no such proposed transfer shall be effective unless the provisions of
Section 4.1 of the Trust Agreement are complied with.
This Beneficial Interest Certificate shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to
principles of conflicts of laws.
IN WITNESS WHEREOF, the person named below, on behalf of the Trust has
caused this Beneficial Interest Certificate to be duly executed.
-----------------------------
Managing Trustee
SCHEDULE A
DEFINITIONS
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Affiliate" means any Person other than the Trust which directly or
indirectly through one or more intermediaries control, or is controlled by, or
is under common control with, the Person in question. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided however, that beneficial ownership of at least 10% of the
voting securities of a Person shall be deemed to be control.
"Agreement" means this Trust Agreement of the Trust, together with the
schedules attached hereto, as amended, restated or supplemented or otherwise
modified from time to time.
"Bank" has the meaning set forth in the recitals to this Agreement.
"Bankruptcy" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the Person
or of all or any substantial part of its properties, or (vii) if 120 days after
the commencement of any proceeding against the Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, if the proceeding has not been dismissed, or if
within 90 days after the appointment without such Person's consent or
acquiescence of a trustee, receiver or liquidator of such Person or of all or
any substantial part of its properties, the appointment is not vacated or
stayed, or within 90 days after the expiration of any such stay, the appointment
is not vacated.
"Basic Documents" means (i) this Agreement, (ii) the Pooling and
Servicing Agreement, (iii) the Purchase Agreement, (iv) the Credit Agreement,
(v) the Series Supplements, (vi) the Owner Trust Agreements, (vii) the Transfer
Agreements, (viii) the Trust Obligations, (ix) the Amendment to Series
Supplements, dated as of January 1, 2002, among the Bank, the Company and the
Master Trust Trustee, (x) the Omnibus First Amendment to Trust Agreements, dated
as of January 1, 2002, among the Bank, the Company and Wilmington Trust Company,
as owner trustee, (xi) the Omnibus First Amendment to Transfer and
Administration Agreements, dated as of January 1, 2002, among
the Bank, the Company and certain Delaware business trusts parties thereto,
(xii) the Amendment Number 2 to Series 1995-C Loan Agreement, dated as of
January 1, 2002, among the Bank, the Company, the Master Trust Trustee and The
Industrial Bank of Japan, Limited, as agent (the "Agent"), (xiii) the Amendment
Number 2 to Series 1996-A Loan Agreement, dated as of January 1, 2002, among the
Bank, the Company, the Master Trust Trustee and the Agent, (xiv) the Amendment
Number 3 to Series 1996-D Loan Agreement, dated as of January 1, 2002, among the
Bank, the Company, the Master Trust Trustee and the Agent, (xv) the Amendment
Number 3 to Series 1996-B Loan Agreement, dated as of January 1, 2002, among the
Bank, the Company, the Master Trust Trustee and Credit Suisse First Boston, as
agent, (xvi) the Amendment Number 1 to Series 1999-B Loan Agreement, dated as of
January 1, 2002, among the Bank, the Company, the Master Trust Trustee and
Commerzbank Aktiengesellschaft, New York Branch, as agent, (xvii) the
Administrative Services and Premises Agreement, dated as of January 1, 2002, as
amended and restated as of March 28, 2002, between the Trust and the Bank,
(xviii) the Registration Statement, and (xix) all documents and certificates
contemplated thereby or delivered in connection therewith, and all amendments
thereto.
"Beneficial Interest Certificate" means one or more trust certificates
(together with any replacements thereof) issued by the Trust representing the
exclusive, undivided beneficial interest in the Trust, in the form of Exhibit A
attached hereto.
"Beneficial Owner" means Fleet Credit Card Services, L.P., and any
other holders of record from time to time of outstanding Beneficial Interest
Certificates.
"Board" or "Board of Managing Trustees" means the Board of Managing
Trustees of the Trust as described herein.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the recitals to this Agreement.
"Covered Persons" has the meaning set forth in Section 6.4.
"Credit Agreement" has the meaning set forth in Section 1.4(a).
"ERISA" has the meaning set forth in Section 4.1(e).
"Independent Trustee" means a Managing Trustee who, except in his or
her capacity as an Independent Trustee of the Trust is not, and has not been
during the five years immediately before such individual's appointment as an
Independent Trustee, (i) a Beneficial Owner, director, partner, officer,
significant customer, supplier, independent contractor, creditor, or employee of
the Trust or its Affiliates; (ii) affiliated with a significant customer,
supplier, creditor, or independent contractor of the Trust or its Affiliates;
(iii) a spouse, parent, sibling, or child of any person described by (i) or (ii)
above; provided, however, that an individual shall not be deemed to be
ineligible to be an Independent Trustee solely because such individual (i) owns
1% or less of the outstanding stock of an Affiliate that is a publicly-traded
company or (ii) serves or has served in the capacity of an
"independent trustee", "independent manager" or "independent director" or a
similar capacity for other "special purpose entities" formed by the Bank or a
Beneficial Owner or its Affiliates.
"Managing Trustees" means, collectively, the individuals named in
Section 3.1 hereof so long as they continue in office, and all other individuals
who have been duly elected and qualify as trustees of the Trust hereunder,
including the Independent Trustees, but not including the Resident Trustee.
Reference herein to the Managing Trustees shall refer to the individuals serving
as Managing Trustees in their capacity as trustees hereunder.
"Master Trust" has the meaning set forth in Section 1.4(a).
"Material Action" means to change the business purposes of the Trust,
to consolidate or merge the Trust with or into any Person, or sell all or
substantially all of the assets of the Trust other than as provided in Section
1.4 or any Basic Document, or to institute proceedings to have the Trust be
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Trust, or file a petition seeking, or
consent to, reorganization or relief with respect to the Trust, under any
applicable federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Trust or a substantial part of its property, or make
any assignment for the benefit of creditors of the Trust, or admit in writing
the Trust's inability to pay its debts generally as they become due, or take
action in furtherance of any such action, or, to the fullest extent permitted by
law, dissolve, terminate or liquidate the Trust.
"Member" has the meaning set forth in the recitals to this Agreement.
"Officer" means an officer of the Trust.
"Officer's Certificate" means a certificate signed by any Officer of
the Trust who is authorized to act for the Trust in matters relating to the
Trust.
"Original Member" has the meaning set forth in the recitals to this
Agreement.
"Owner" has the meaning assigned thereto in each of the Owner Trust
Agreements.
"Owner Trust Agreement" has the meaning set forth in Section 1.4(a).
For purposes of the definition of "Basic Documents," the term "Owner Trust
Agreement" shall also mean any other similar agreement or agreements entered
into from time to time by the Trust as Transferor.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Plan" has the meaning set forth in Section 4.1(e).
"Pooling and Servicing Agreement" has the meaning set forth in Section
1.4(a).
"Purchase Agreement" has the meaning set forth in Section 1.4(a).
"Rating Agency" has the meaning assigned to that term in the Pooling
and Servicing Agreement.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have notified the Trust in writing that such action will not
result in a reduction or withdrawal of the rating of any Series or Class (each
as defined in the Pooling and Servicing Agreement) with respect to which it is a
Rating Agency.
"Resident Trustee" has the meaning set forth in the recitals to this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Series Supplement" means any supplement to the Pooling and Servicing
Agreement executed and delivered in connection with the original issuance of
Investor Certificates (as defined in the Pooling and Servicing Agreement) of a
series, whether executed and delivered prior to or after the date of this
Agreement, and all amendments thereof and supplements thereto.
"Transfer Agreement" has the meaning set forth in Section 1.4(a). For
purposes of the definition of "Basic Documents," the term "Transfer Agreement"
shall also mean any other similar agreement or agreements entered into from time
to time by the Trust as Transferor.
"Transferor" has the meaning assigned thereto in the Pooling and
Servicing Agreement and also the meaning assigned thereto in the Transfer
Agreements.
"Trust" means Fleet Credit Card Funding Trust, the statutory business
trust created hereby and pursuant to the Certificate of Trust.
"Trust Act" has the same meaning as defined in the first paragraph of
this Agreement.
"Trust Assets" means any and all property, real, personal, or
otherwise, tangible or intangible, that is transferred or conveyed to the Trust
(including all rents, income, profits, and gains therefrom), and that is owned
or held by, or for the account of, the Trust.
"Trustees" means any or all of the Managing Trustees, Independent
Trustees and the Resident Trustee.
"Trust Obligation" means any Investor Certificate (as defined in the
Pooling and Servicing Agreement) or other interest in the Master Trust issued
under the Pooling and Servicing Agreement and any supplement thereto.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause,
Exhibit or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
SCHEDULE B
OFFICERS TITLE
-------- -----
Xxxx Xxxxxxxxx President
Xxxxx X. Xxxxxx Vice President, Secretary and
General Counsel
Xxxxxxx Xxxxxx Vice President
Xxxxxxxx Xxxx Vice President
Xxxx X. Xxxxxxx Treasurer
