**EXHIBIT10.5**

 

**EXECUTIONCOPY**

 

**TRUSTAGREEMENT**

 

 

among

 

 

**PACCT,LLC,**

as Transferor,

 

 

**CSGFUNDING, LLC,**

as O/C Holder

 

 

and

 

 

**WILMINGTONTRUST COMPANY,**

as Owner Trustee

 

 

Dated as of June 24, 2002

 

 

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|                      | ARTICLE I                                                                               |   |
|---------------------------|-----------------------------------------------------------------------------------------|--------|
|                      | DEFINITIONS                                                                             |   |
|                      |                                                                                    |   |
| Section  1.01.            | Capitalized  Terms                                                                      |   |
| Section  1.02.            | Other  Definitional Provisions                                                          |   |
|                      |                                                                                    |   |
|                      | ARTICLE II                                                                              |   |
|                      | ORGANIZATION                                                                            |   |
|                      |                                                                                    |   |
| Section  2.01.            | Name                                                                                    |   |
| Section  2.02.            | Office                                                                                  |   |
| Section  2.03.            | Purpose  and Powers                                                                     |   |
| Section  2.04.            | Appointment  of Owner Trustee                                                           |   |
| Section  2.05             | Initial  Capital Contribution of Trust Estate                                           |   |
| Section  2.06.            | Declaration  of Trust                                                                   |   |
| Section  2.07.            | Title to  Trust Property                                                                |   |
| Section  2.08.            | Situs of  Trust                                                                         |   |
| Section  2.09.            | Representations  and Warranties of the Transferor                                       |   |
| Section  2.10.            | Liability  of Certificateholders                                                        |   |
|                      |                                                                                    |   |
| ARTICLE III               |
|                      |
| CERTIFICATES              |
|                      |                                                                                    |   |
| Section  3.01.            | Initial  Ownership                                                                      |   |
| Section  3.02.            | Form of  Certificates                                                                   |   |
| Section  3.03.            | Authentication  of Certificates                                                         |   |
| Section  3.04.            | Restrictions  on Transfer                                                               |   |
| Section  3.05.            | Mutilated,  Destroyed, Lost or Stolen Certificate                                       |   |
| Section  3.06.            | Issuance  of New Transferor Certificate                                                 |   |
|                      |                                                                                    |   |
| ARTICLE IV                |
|                      |
| ACTIONS  BY OWNER TRUSTEE |
|                      |                                                                                    |   |
| Section  4.01.            | Prior  Notice to Owner, Transferor and O/C Holder with  Respect to Certain Matters |   |
| Section  4.02.            | Restrictions  on Power                                                                  |   |

 

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| ARTICLE V                              |
|----------------------------------------|
|                                   |
| AUTHORITY AND  DUTIES OF OWNER TRUSTEE |
|                                   |   |   |
| Section  5.01.                         | General  Authority |   |
| Section  5.02.                         | General  Duties |   |
| Section  5.03.                         | Action  Upon Instruction |   |
| Section  5.04.                         | No Duties  Except as Specified in this Agreement or in Instructions |   |
| Section  5.05.                         | No Action  Except under Specified Documents or Instructions |   |
| Section  5.06.                         | Restrictions |   |
| Section  5.07.                         | Confidentiality. |   |
|                                   |   |   |
| ARTICLE VI                             |
|                                   |
| CONCERNING THE OWNER  TRUSTEE          |
|                                   |   |   |
| Section  6.01.                         | Acceptance  of Trusts and Duties |   |
| Section  6.02.                         | Furnishing  of Documents |   |
| Section  6.03.                         | Representations  and Warranties |   |
| Section  6.04.                         | Reliance;  Advice of Counsel |   |
| Section  6.05.                         | Not  Acting in Individual Capacity |   |
| Section  6.06.                         | Owner  Trustee Not Liable for Certificates, Notes or Receivables |   |
| Section  6.07.                         | Owner  Trustee May Own Notes |   |
|                                   |   |   |
| ARTICLE VII                            |
|                                   |
| COMPENSATION OF OWNER  TRUSTEE         |
|                                   |   |   |
| Section  7.01.                         | Owner  Trustee’s Fees and Expenses |   |
| Section  7.02.                         | Indemnification |   |
| Section  7.03.                         | Payments  to the Owner Trustee |   |
|                                   |   |   |
| ARTICLE VIII                           |
|                                   |
| TERMINATION OF TRUST  AGREEMENT        |
|                                   |   |   |
| Section  8.01.                         | Termination  of Trust Agreement |   |

 

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| ARTICLE IX                                              |
|---------------------------------------------------------|
|                                                    |
| SUCCESSOR  OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES |
|                                                    |   |   |
| Section  9.01.                                          | Eligibility  Requirements for Owner Trustee |   |
| Section  9.02.                                          | Resignation  or Removal of Owner Trustee |   |
| Section  9.03.                                          | Successor  Owner Trustee |   |
| Section  9.04.                                          | Merger or  Consolidation of Owner Trustee |   |
| Section  9.05.                                          | Appointment  of Co-Trustee or Separate Trustee |   |
|                                                    |   |   |
| ARTICLE X                                               |
|                                                    |
| MISCELLANEOUS                                           |
|                                                    |   |   |
| Section  10.01.                                         | Supplements  and Amendments |   |
| Section  10.02.                                         | No  Legal Title to Trust Estate in Transferor or O/C Holder |   |
| Section  10.03.                                         | Limitations  on Rights of Others |   |
| Section  10.04.                                         | Notices |   |
| Section  10.05.                                         | Severability |   |
| Section  10.06.                                         | Separate  Counterparts |   |
| Section  10.07.                                         | Successors  and Assigns |   |
| Section  10.08.                                         | Nonpetition  Covenants |   |
| Section  10.09.                                         | No  Recourse |   |
| Section  10.10.                                         | Headings |   |
| Section  10.11.                                         | Governing  Law |   |
| Section  10.12.                                         | Acceptance  of Terms of Agreement |   |
| Section  10.13.                                         | Integration  of Documents |   |
|                                                    |   |   |
| EXHIBITS                                                |
|                                                    |
| EXHIBIT A                                               | FORM OF  OWNERSHIP INTEREST CERTIFICATE |   |
|                                                    |   |   |
| EXHIBIT B                                               | FORM OF TRANSFEROR  CERTIFICATE |   |
|                                                    |   |   |
| EXHIBIT C                                               | FORM OF CERTIFICATE  OF TRUST |   |

 

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CSGQ TRUST TRUST AGREEMENT, dated as of June 24, 2002,among PACCT, LLC, a Delaware limited liability company, as Transferor, CSGFUNDING, LLC, a Delaware limited liability company, as O/C Holder, andWILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee.

** **

**ARTICLE I**

 

DEFINITIONS

 

SECTION 1.01.  Capitalized Terms.  For all purposes of this Agreement, thefollowing terms shall have the meanings set forth below:

 

“Administration Agreement” shall mean theAdministration Agreement, dated as of June 25, 2002, between the Issuer andCSG, LLC, as Administrator.

 

“Administrator” shall mean CSG, LLC, or anysuccessor Administrator under the Administration Agreement.

 

“Agreement” shall mean this Trust Agreement ofCSGQ Trust, as the same may be amended, modified or otherwise supplemented fromtime to time.

 

“Business Trust Statute” shall mean Chapter 38of Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq., asthe same may be amended from time to time.

 

“Certificates” shall mean, unless otherwiseindicated, the Transferor Certificate and the Ownership Interest Certificate.

 

“Certificate of Trust” shall mean theCertificate of Trust in the form attached hereto as Exhibit C which has beenfiled for the Trust pursuant to Section 3810(a) of the Business Trust Statute.

 

“Corporate Trust Office” shall mean, withrespect to the Owner Trustee, the principal corporate trust office of the OwnerTrustee located at Rodney Square North, 1100 North Market Street, Wilmington,Delaware 19890-0001, Attention: Corporate Trust Administration; or such otheraddress as the Owner Trustee may designate by notice to the Transferor, or theprincipal corporate trust office of any successor Owner Trustee (the address ofwhich the successor Owner Trustee will notify the Owner, the Indenture Trustee,the Note Administrator, the Transferor and the O/C Holder).

 

“CompuCredit” shall mean CompuCreditCorporation, a Georgia corporation.

 

“Expenses” shall have the meaning specified inSection 7.02.

 

“Indemnified Parties” shall have the meaningspecified in Section 7.02.

 

“Indenture” shall mean the Master Indenture,dated as of June 25, 2002, among the Trust, U.S. Bank National Association, asIndenture Trustee, and Citibank, N.A., as Note Administrator, as the same maybe amended, supplemented or otherwise modified from time to time.

 

“Indenture Trustee” shall mean U.S. BankNational Association, not in its individual capacity but solely as IndentureTrustee under the Indenture, and any successor Indenture Trustee under theIndenture.

 

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 “Issuer”shall mean the Trust.

 

“Note Administrator” shall mean Citibank, N.A.,not in its individual capacity but solely as Note Administrator under theIndenture, and any successor Note Administrator under the Indenture.

 

“O/C Holder” shall mean CSG Funding, LLC, inits capacity as O/C Holder hereunder and its successors and assigns in suchcapacity.

 

“Owner” shall mean PACCT, LLC, and itssuccessors and permitted assigns, in its capacity as beneficial owner of theTrust hereunder and its successors and assigns in such capacity.

 

“Owner Trustee” shall mean Wilmington TrustCompany, a Delaware banking corporation, not in its individual capacity butsolely as Owner Trustee under this Agreement, and any successor Owner Trusteehereunder.

 

“Ownership Interest Certificate” shall mean thecertificate evidencing the beneficial ownership interest of the Owner in theTrust, substantially in the form attached hereto as Exhibit A.

 

“Secretary of State” shall mean the Secretaryof State of the State of Delaware.

 

“Transfer and Servicing Agreement” shall meanthe Transfer and Servicing Agreement, dated as of June 25, 2002, among theIssuer, the Transferor, CompuCredit, as Servicer, and the O/C Holder, as thesame may be amended, supplemented or otherwise modified from time to time.

 

“Transferor” shall mean PACCT, LLC, in itscapacity as Transferor hereunder and its successors and assigns in suchcapacity.

 

“Transferor Certificate” shall mean thecertificate executed by the Owner Trustee on behalf of the Trust and authenticatedby or on behalf of the Owner Trustee, substantially in the form attached heretoas Exhibit B.

 

“Trust” shall mean the trust created by thisAgreement and the filing of the Certificate of Trust.

 

“Trust Estate” shall mean all right, title andinterest of the Trust in and to the property and rights assigned to the Trustpursuant to Section 2.05 of this Agreement and Section 2.01 of the Transfer andServicing Agreement, all monies, investment property, instruments and otherproperty on deposit from time to time in the Collection Account and the SeriesAccounts and all other property of the Trust from time to time, including anyrights of the Owner Trustee and the Trust pursuant to the TransactionDocuments.

 

“Trust Termination Date” shall have the meaningspecified in Section 8.01.

 

SECTION 1.02.Other Definitional Provisions. Capitalized terms used herein and not otherwise defined have themeanings assigned to them in the Transfer and Servicing Agreement or, if notdefined therein, in the Indenture.

 

(a)           All terms defined in this Agreementshall have the defined meanings when used in any certificate or other documentmade or delivered pursuant hereto unless otherwise defined therein.

 

(b)           As used in this Agreement and in anycertificate or other document made or delivered pursuant hereto or thereto,accounting terms not defined in this Agreement or in any such certificate or

 

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other document, andaccounting terms partly defined in this Agreement or in any such certificate orother document to the extent not defined, shall have the respective meaningsgiven to them under GAAP.  To the extentthat the definitions of accounting terms in this Agreement or in any suchcertificate or other document are inconsistent with the meanings of such termsunder GAAP, the definitions contained in this Agreement or in any suchcertificate or other document shall control.

 

(c)           The words “hereof,” “herein,”“hereunder,” and words of similar import when used in this Agreement shallrefer to this Agreement as a whole and not to any particular provision of thisAgreement; Section, subsection and Exhibit references contained in thisAgreement are references to Sections, subsections and Exhibits in or to thisAgreement unless otherwise specified; and the term “including” shall mean“including without limitation.”

 

(d)           The definitions contained in thisAgreement are applicable to the singular as well as the plural forms of suchterms and to the masculine as well as to the feminine and neuter genders ofsuch terms.

** **

**ARTICLE II**

 

ORGANIZATION

 

SECTION 2.01.  Name.  The Trust created hereby shall be known as “CSGQ Trust,” in whichname the Trust and the Owner Trustee on behalf of the Trust each shall havepower and authority and is hereby authorized and empowered to and may conductthe business of the Trust, make and execute contracts and other instruments onbehalf of the Trust and sue and be sued.

 

SECTION 2.02.  Office.  The office of the Trust shall be in care of the Owner Trustee atthe Corporate Trust Office or at such other address in the State of Delaware asthe Owner Trustee may designate by written notice to the Owner, the IndentureTrustee, the Note Administrator and the Transferor.

 

SECTION 2.03.  Purpose and Powers.  Thepurpose of the Trust is to engage in the activities set forth in this Section2.03.  The Trust shall have power andauthority and is hereby authorized and empowered, without the need for furtheraction on the part of the Trust, and the Owner Trustee shall have power andauthority, and is hereby authorized and empowered, in the name of and on behalfof the Trust, to do or cause to be done all acts and things necessary,appropriate or convenient to cause the Trust to engage in the activities setforth in this Section 2.03 as follows:

 

(i)            toexecute, deliver and issue the Notes and the O/C Certificate from time to timepursuant to the Indenture and to issue and authenticate the Certificatespursuant to this Agreement and, in connection with the execution, delivery orissuance of such Notes, O/C Invested Amount and Certificates, to enter into orpurchase for the benefit of the third-party beneficial interest holders anyfutures, forwards, swaps, interest rate caps or other passive derivative financialinstruments with similar characteristics, which financial instruments cannot becontrary to the status of the Trust as a qualified special purpose entity underexisting accounting literature and which do not involve the Owner Trustee inmaking decisions, other than as expressly set forth herein;

 

(ii)           toservice, administer, collect, protect, invest and distribute the Trust Assetsas provide in this Agreement and the other Transaction Documents;

 

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(iii)          withthe proceeds of the sale of the Notes, to accept, acquire and hold for thebenefit of the Holders of the Notes and any other interests in the Trust theTrust Assets from, and to pay to, the Transferor the amounts owed to, theTransferor pursuant to Section 2.01 of the Transfer and Servicing Agreement;

 

(iv)          toassign, grant, transfer, pledge and mortgage the Collateral pursuant to theIndenture and to hold, manage and distribute to the Transferor and the Owner orthe Noteholders pursuant to the terms of this Agreement and the TransactionDocuments any portion of the Collateral released from the Lien of, and remittedto the Trust pursuant to, the Indenture;

 

(v)           toenter into, execute, deliver and perform its obligations under the TransactionDocuments to which it is to be a party;

 

(vi)          toengage in those activities, including executing, delivering and performingagreements, certificates, instruments, reports, notices, filings and otherdocuments described in this Agreement and the other Transaction Documents, thatare necessary or suitable to accomplish the foregoing or are incidental theretoor connected therewith; and

 

(vii)         subjectto compliance with the Transaction Documents, to engage in such otheractivities as are required or suitable in connection with conservation of theTrust Estate and the making of payments to the Noteholders and the O/C Holderand distributions to the Transferor and the Owner, which activities shall notbe contrary to the status of the Trust as a qualified special purpose entityunder existing accounting literature.

 

The Trust shall not have power, authority or authorization to, andshall not, engage in any activity other than in connection with the foregoingor other than as required or authorized by the terms of this Agreement or theTransaction Documents.

 

SECTION 2.04.  Appointment of Owner Trustee.  TheTransferor, at the direction of the O/C Holder, hereby appoints the OwnerTrustee as trustee of the Trust effective as of the date hereof, to have allthe rights, powers and duties set forth herein.

 

SECTION 2.05.  Initial Capital Contribution of TrustEstate.  The Owner hereby assigns,transfers, conveys and sets over to the Owner Trustee, as of the date hereof,the sum of $1.  The Owner Trustee herebyacknowledges receipt in trust from the Owner, as of the date hereof, of theforegoing contribution, which shall constitute the initial Trust Estate andshall be held by the Owner Trustee.  TheO/C Holder shall pay, or cause to be paid, organizational expenses of the Trustas they may arise or shall, upon the request of the Owner Trustee, promptlyreimburse the Owner Trustee for any such expenses paid by the Owner Trustee.

 

SECTION 2.06.  Declaration of Trust.  The Owner Trustee hereby declares that itwill hold the Trust Estate in trust upon and subject to the conditions setforth herein for the use and benefit of the Owner, subject to the obligationsof the Trust under the Transaction Documents to which it is a party, andsubject to the rights of the O/C Holder. It is the intention of the parties hereto that the Trust constitute abusiness trust under the Business Trust Statute and that this Agreementconstitute the governing instrument of such business trust.  It is the intention of the parties heretothat, for income tax purposes, the Trust shall be treated at any time, or fromtime to time, as a security device and disregarded as an entity and its assetsshall be treated as owned in whole by the O/C Holder; provided, however,that in the event the Transferor Amount is positive at any time, or from timeto time, it is the intention of the parties that the Transferor Amount and theinterest in the Trust held by the O/C Holder shall be treated as undividedownership interests in the Collateral and the other assets of the Trust (andnot as a partnership) for such

 

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purposes at suchtimes.  The parties hereto agree thatthey will take no action contrary to the foregoing intention.  Effective as of the date hereof, the OwnerTrustee shall have all rights, powers and authority set forth herein and, tothe extent not inconsistent herewith, in the Business Trust Statute withrespect to accomplishing the purposes of the Trust.

 

SECTION 2.07.  Title to Trust Property.  Legal title to all the Trust Estate shall bevested at all times in the Trust as a separate legal entity except whereapplicable law in any jurisdiction requires title to any part of the TrustEstate to be vested in a trustee or trustees, in which case legal title shallbe deemed to be vested in the Owner Trustee, a co-trustee and/or a separatetrustee, as the case may be.

 

SECTION 2.08.  Situs of Trust.  The Trust will be located in the State ofDelaware. All bank accounts maintained by the Owner Trustee on behalf of theTrust shall be located in the State of Delaware or the State of New York.  The Trust shall not have any employees inany state other than Delaware; provided, however, that nothingherein shall restrict or prohibit the Owner Trustee from having employeeswithin or without the State of Delaware. The Trust will be administered, and payments will be received by theTrust only in Delaware, Georgia or New York, and payments will be made by theTrust only from Delaware or New York. The only office of the Trust will be at the Corporate Trust Office inDelaware.

 

SECTION 2.09.  Representations and Warranties of theTransferor.  The Transferor herebyrepresents and warrants to the Owner Trustee (as such or in its individualcapacity) and the O/C Holder that:

 

(a)  The Transferor is a limited liabilitycompany organized and validly existing in good standing under the laws of theState of Delaware and has, in all material respects, full power and authorityto own its properties and conduct its business as such properties are presentlyowned and such business is presently conducted, and to execute, deliver andperform its obligations under this Agreement and any other documents relatedhereto to which it is a party and to perform its obligations as contemplatedhereby and thereby.

 

(b)  The Transferor is duly qualified to dobusiness and is in good standing (or is exempt from such requirement) in anystate required in order to conduct its business, and has obtained all necessarylicenses and approvals with respect to the Transferor, in each jurisdiction inwhich failure to so qualify or to obtain such licenses and approvals would havea material adverse effect on its ability to perform its obligations under thisAgreement or any other documents related hereto to which the Transferor is aparty.

 

(c)  The execution and delivery of this Agreementby the Transferor and the consummation of the transactions provided for in thisAgreement and in the other Transaction Documents to which the Transferor is aparty have been duly authorized by the Transferor by all necessary corporateaction on its part; the Transferor has the power and authority to assign theproperty to be assigned to and deposited with the Trust pursuant to Section2.05 of this Agreement and Section 2.01 of the Transfer and ServicingAgreement.

 

(d)  The execution and delivery of this Agreementby the Transferor, the performance of the transactions contemplated by thisAgreement and the fulfillment by the Transferor of the terms hereof will notconflict with or violate any organizational documents of the Transferor orconflict with, result in any breach of any of the material terms and provisionsof, or constitute (with or without notice or lapse of time or both) a materialdefault under, any indenture, contract, agreement, mortgage, deed of trust orother instrument to which the Transferor is a party or by which it or any ofits properties are bound, nor result in the creation or imposition of any lienupon any of the Transferor’s properties pursuant to the terms of any

 

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such indenture, contract,agreement, mortgage, deed of trust or other instrument (other than pursuant tothe Transaction Documents and other than violations of such indentures,contracts, agreements, mortgages, deeds of trust or other instruments whichindividually or in the aggregate would not have a material adverse effect onthe Transferor or the transactions contemplated by, or its ability to performits obligations under, this Agreement).

 

(e)  The execution and delivery of this Agreementby the Transferor, the performance by the Transferor of the transactionscontemplated by this Agreement and the fulfillment by the Transferor of theterms hereof will not conflict with or violate any Requirements of Lawapplicable to the Transferor.

 

(f)  There are no Proceedings or investigationspending or, to the best knowledge of the Transferor, threatened against theTransferor before any court, regulatory body, administrative agency, or othertribunal or governmental instrumentality having jurisdiction over theTransferor (i) asserting the invalidity of any of the Transaction Documents towhich the Transferor is a party, (ii) seeking to prevent the consummation ofany of the transactions contemplated by any of the Transaction Documents towhich the Transferor is a party, (iii) seeking any determination or rulingthat, in the reasonable judgment of the Transferor, would materially andadversely affect the performance by the Transferor of its obligations under theTransaction Documents to which the Transferor is a party, or (iv) seeking anydetermination or ruling that would materially and adversely affect the validityor enforceability of the Transaction Documents to which the Transferor is aparty.

 

(g)  This Agreement constitutes a legal, validand binding obligation of the Transferor, enforceable against the Transferor inaccordance with its terms, except as such enforceability may be limited byapplicable bankruptcy, insolvency, reorganization, receivership,conservatorship, moratorium or other similar laws affecting creditors’ rightsgenerally or general principles of equity.

 

(h)  All authorizations, consents, orders orapprovals of or registrations or declarations with any court, regulatory body,administrative agency or other tribunal or governmental instrumentality havingjurisdiction over the Transferor required to be obtained, effected, or given bythe Transferor in connection with the execution and delivery by the Transferorof this Agreement and the performance of the transactions contemplated by thisAgreement by the Transferor have been duly obtained, effected or given and arein full force and effect, except for those which the failure to obtain wouldnot have a material adverse effect on this Agreement and the transactionscontemplated hereby or on the ability of the Transferor to perform itsobligations under this Agreement.

 

SECTION 2.10.  Liability of Certificateholders.  Theholders of the Ownership Interest Certificate, the Transferor Certificate andany interest in the Transferor shall be entitled to the same limitation ofpersonal liability extended to stockholders of private corporations for profitorganized under the General Corporation Law of the State of Delaware.

** **

**ARTICLE III**

** **

**CERTIFICATES**

** **

SECTION 3.01.  Initial Ownership.  The Owner, in its capacity as the holder ofthe Ownership Interest Certificate, and each Transferor, as the holder of aTransferor Certificate (i) shall be the only beneficial owners of the Trust and(ii) shall be bound by the provisions of this Trust Agreement.

 

SECTION 3.02.  Form of Certificates.  (a) The Ownership Interest Certificate shallbe issued in registered form in substantially the form attached hereto asExhibit A and initially registered as provided

 

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in Annex 1 to ExhibitA.  A Transferor Certificate shall beissued in registered form in substantially the form attached hereto as ExhibitB and initially registered as provided in Annex 1 to Exhibit B.

 

(b) TheCertificates shall be executed by manual or facsimile signature of anauthorized officer of the Owner Trustee. The Certificates bearing the manual or facsimile signatures ofindividuals who were, at the time when such signatures shall have been affixed,authorized to sign on behalf of the Trust, shall, when duly authenticatedpursuant to Section 3.03, be validly issued and fully paid undivided beneficialinterests in the assets of the Trust and entitled to the benefits of this Agreement,notwithstanding that such individuals or any of them shall have ceased to be soauthorized prior to the authentication and delivery of the Certificates or didnot hold such offices at the date of authentication and delivery of theCertificates.

 

SECTION 3.03.  Authentication of Certificates.  Concurrently with the initial assignment ofthe Receivables to the Trust pursuant to the Transfer and Servicing Agreement,the Owner Trustee shall execute, authenticate and deliver the OwnershipInterest Certificate and the Transferor Certificate to or upon the writtenorder of the Owner, signed by its chairman of the board, its president, anyvice president, secretary, any assistant treasurer or any authorized signatory,without further corporate action by the Owner. No Certificate shall be entitledto any benefit under this Agreement, or be valid for any purpose, unless thereappears on such Certificate a certificate of authentication substantially inthe form provided for herein, executed by or on behalf of the Owner Trustee bythe manual signature of a duly authorized signatory, and such certificate uponany Certificate shall be conclusive evidence, and the only evidence, that suchCertificate has been duly authenticated, validly issued and delivered hereunder.  Each Certificate shall be dated the date ofits authentication.

 

SECTION 3.04.  Restrictions on Transfer.  To the fullest extent permitted byapplicable law, the Certificates (or any interest therein) may not be sold,transferred, assigned, participated, pledged or otherwise disposed of to anyPerson; provided, however, that a Certificate (or any interesttherein) may be sold, transferred, assigned, participated, pledged or otherwisedisposed of if (i) the transferor thereof has provided the Owner Trustee, theNote Administrator and the Indenture Trustee with a Tax Opinion relating tosuch sale, transfer, assignment, participation, pledge or other disposition and(ii) the Rating Agency Condition has been satisfied with respect to such sale,transfer, assignment, participation, pledge or other disposition.  Notwithstanding the foregoing, the OwnerTrustee shall treat the party in whose name the Certificate is registered asthe owner thereof for purposes hereunder.

 

SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificate.  If(a) a mutilated Certificate shall be surrendered to the Owner Trustee, or ifthe Owner Trustee shall receive evidence to its satisfaction of thedestruction, loss or theft of a Certificate and (b) there shall be delivered tothe Owner Trustee (as such and in its individual capacity) such security orindemnity as may be required by it to save it harmless, then the Owner Trusteeon behalf of the Trust shall execute and the Owner Trustee shall authenticateand deliver, in exchange for or in lieu of the mutilated, destroyed, lost orstolen Certificate, a new Certificate of like tenor and denomination.  In connection with the issuance of any newCertificate under this Section 3.05, the Owner Trustee may require the paymentof a sum sufficient to cover any tax or other governmental charge or expensethat may be imposed in connection therewith. Any duplicate Certificate issued pursuant to this Section 3.05 shallconstitute conclusive evidence of ownership in the Trust, as if originallyissued, whether or not the lost, stolen or destroyed Certificate shall be foundat any time.

 

SECTION 3.06.  Issuance of New Transferor Certificate. Taken together, the Transferor Certificate shall represent an undividedbeneficial interest in the Trust Assets, subject to the lien of the Notes andthe O/C Certificate as provided in the Indenture, including the right toreceive Collections with respect to the Receivables and other amounts at thetimes and in the amounts specified in the Indenture 

 

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and any IndentureSupplement to be paid to the Transferor on behalf of all holders of theTransferor Certificate.

** **

**ARTICLE IV**

** **

**ACTIONS BY OWNER TRUSTEE**

** **

SECTION 4.01.  Prior Notice to Owner, Transferor and O/CHolder with Respect to Certain Matters. With respect to the following matters, unless otherwise instructed bythe O/C Holder or the Transferor, acting at the direction of the O/C Holder,the Trust shall not take action unless at least thirty (30) days before thetaking of such action the Owner Trustee shall have notified the Owner, theTransferor and the O/C Holder:

 

(a)  the initiation of any claim or lawsuit bythe Trust (other than an action to collect on the Trust Estate) and the settlementof any action, claim or lawsuit brought by or against the Trust (other than anaction to collect on the Trust Estate);

 

(b)  the election by the Trust to file anamendment to the Certificate of Trust (other than as may be required by theBusiness Trust Statute);

 

(c)  the amendment of the Indenture by asupplemental indenture in circumstances where the consent of any Noteholder isrequired;

 

(d)  the amendment of the Indenture by asupplemental indenture in circumstances where the consent of any Noteholder isnot required and such amendment materially adversely affects the interest ofthe Transferor or the O/C Holder;

 

(e)  the amendment, change or modification of theAdministration Agreement, except to cure any ambiguity or to amend orsupplement any provision in a manner that would not materially adversely affectthe interests of the Transferor or the O/C Holder; or

 

(f)  the appointment pursuant to the Indenture ofa replacement or successor Transfer Agent and Registrar, Indenture Trustee orNote Administrator, or the consent to the assignment by the Transfer Agent andRegistrar, Administrator, Indenture Trustee or Note Administrator of itsobligations under the Indenture.

 

SECTION 4.02. Restrictions on Power. (a)  The Owner Trustee shall notbe required to take or refrain from taking any action if such action orinaction would be contrary to any obligation of the Trust or the Owner Trustee(as such or in its individual capacity) under any of the Transaction Documentsor would be contrary to Section 2.03.

 

(b)  The Owner Trustee shall have no power tocreate, assume or incur indebtedness or other liabilities in the name of theTrust other than as contemplated in the relevant Transaction Documents.

** **

**ARTICLEV**

 

**AUTHORITY AND DUTIES OF OWNER TRUSTEE**

 

SECTION 5.01.  GeneralAuthority.  Each of the Trust andthe Owner Trustee in the name and on behalf of the Trust shall have power andauthority, and is hereby authorized and empowered, to execute and deliver theTransaction Documents to which the Trust is to be a party and each certificateor other

 

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document related theretoor attached as an exhibit to or contemplated by the Transaction Documents towhich the Trust is to be a party, or any amendment thereto or other agreement,in each case, in such form as the O/C Holder shall approve as evidencedconclusively by the Owner Trustee’s execution thereof and the O/C Holder’sexecution of the related documents.  Inaddition to the foregoing, the Owner Trustee in the name and on behalf of theTrust shall also have power and authority and is hereby authorized andempowered, but shall not be obligated, to take all actions required of theTrust pursuant to the Transaction Documents. The Owner Trustee in the name and on behalf of the Trust shall also havepower and authority and is hereby authorized and empowered from time to time totake such action as the O/C Holder or the Administrator directs in writing withrespect to the Transaction Documents.

 

SECTION 5.02. General Duties.  It shallbe the duty of the Owner Trustee to discharge (or cause to be discharged) allof its responsibilities pursuant to the terms of this Agreement and the otherTransaction Documents to which it is a party and to administer the Trust in theinterest of the Owner, subject to the Transaction Documents and in accordancewith the provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to havedischarged its duties and responsibilities hereunder and under the otherTransaction Documents to the extent the Administrator has agreed in theAdministration Agreement or another Transaction Document to perform any act orto discharge any duty of the Owner Trustee or the Trust under any TransactionDocument, and the Owner Trustee shall not be responsible for monitoring theperformance of the Administrator under the Administration Agreement and shallnot be personally liable for the default or failure of the Administrator tocarry out its obligations under the Administration Agreement.

 

SECTION 5.03.  Action Upon Instruction.

 

(a)   The Owner Trustee shall not be required totake any action hereunder or under any other Transaction Document if the OwnerTrustee shall have reasonably determined, or shall have been advised bycounsel, that such action is likely to result in personal liability on the partof the Owner Trustee or is contrary to the terms hereof or of any TransactionDocument or is otherwise contrary to law.

 

(b)   Whenever the Owner Trustee is unable to decidebetween alternative courses of action permitted or required by the terms ofthis Agreement or any Transaction Document, the Owner Trustee shall promptlygive notice (in such form as shall be appropriate under the circumstances) tothe O/C Holder requesting instruction as to the course of action to be adopted,and to the extent the Owner Trustee acts or refrains from acting in good faithin accordance with any such instruction of the O/C Holder received, the OwnerTrustee shall not be personally liable on account of such action or inaction toany Person.  If the Owner Trustee shallnot have received appropriate instruction within ten (10) days of such notice(or within such shorter period of time as reasonably may be specified in suchnotice or may be necessary under the circumstances) it may, but shall be underno duty to, take or refrain from taking such action, not in violation of theTransaction Documents, as it shall deem to be in the best interest of theOwner, and shall have no personal liability to any Person for such action orinaction.

 

(c)   In the event that the Owner Trustee is unsureas to the application of any provision of any Transaction Document or any suchprovision is ambiguous as to its application, or is, or appears to be, inconflict with any other applicable provision, or in the event that thisAgreement permits any determination by the Owner Trustee or is silent or isincomplete as to the course of action that the Owner Trustee is required totake with respect to a particular set of facts, the Owner Trustee may givenotice (in such form as shall be appropriate under the circumstances) to theO/C Holder requesting instruction and, to the extent that the Owner Trusteeacts or refrains from acting in good faith in accordance with any such instructionreceived, the Owner Trustee shall not be personally liable, on account of suchaction or inaction, to any Person.  Ifthe Owner Trustee shall not have received appropriate instruction within ten(10) days of such notice (or within such shorter period of time as reasonablymay be specified in such

 

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notice or may benecessary under the circumstances) it may, but shall be under no duty to, takeor refrain from taking such action, not in violation of the TransactionDocuments, as it shall deem to be in the best interests of the Owner, and shallhave no personal liability to any Person for such action or inaction.

 

SECTION 5.04. No Duties Except as Specified in this Agreement or in Instructions.  The Owner Trustee shall not have any duty orobligation to manage, make any payment with respect to, register, record, sell,dispose of, or otherwise deal with the Trust or the Trust Estate, or tootherwise take or refrain from taking any action under, or in connection with,this Agreement or any document contemplated hereby to which the Trust is aparty, except as expressly provided by the terms of this Agreement or in anydocument or written instruction received by the Owner Trustee pursuant toSection 5.03; and no implied duties or obligations shall be read into anyTransaction Document against the Owner Trustee.  The Owner Trustee shall have no responsibility for any filing orrecording, including filing any financing or continuation statement in anypublic office at any time or to otherwise perfect or maintain the perfection ofany security interest or lien granted to it or the Trust hereunder or toprepare or file any Commission filing for the Trust or to record anyTransaction Document.  The Owner Trusteein its individual capacity nevertheless agrees that it will, at its own costand expense, promptly take all action as may be necessary to discharge anyliens on any part of the Trust Estate that result from actions by, or claimsagainst, the Owner Trustee in its individual capacity that are not related tothe ownership or the administration of the Trust Estate or the transactionscontemplated by the Transaction Documents.

 

SECTION 5.05. No Action Except under Specified Documents or Instructions.  The Owner Trustee shall not manage, control,use, sell, dispose of or otherwise deal with any part of the Trust Estateexcept (i) in accordance with the powers granted to and the authority conferredupon the Owner Trustee pursuant to this Agreement, (ii) in accordance with theTransaction Documents or (iii) in accordance with any document or instructiondelivered to the Owner Trustee pursuant to Section 5.03.

 

SECTION 5.06. Restrictions.  The OwnerTrustee shall not take any action (a) that, to the actual knowledge of theOwner Trustee, would violate the purposes of the Trust set forth in Section2.03, (b) that, to the actual knowledge of the Owner Trustee, would result inthe Trust’s becoming classified as an association (or publicly tradedpartnership) taxable as a corporation for federal income tax purposes or (c)that would be contrary to the powers provided to a qualifying special purposeentity under generally accepted accounting principles.  Neither the O/C Holder nor the Transferorshall direct the Owner Trustee to take any action that would violate theprovisions of this Section 5.06.

 

SECTION 5.07. Confidentiality.  To thefullest extent permitted by applicable law, the Owner Trustee hereby agrees notto disclose to any Person any of the account numbers or other informationcontained in any schedule delivered to the Owner Trustee or the Trust, fromtime to time, except (i) to a Successor Servicer or as required by aRequirement of Law applicable to the Owner Trustee, (ii) in connection with theperformance of the Owner Trustee’s duties hereunder, (iii) to the IndentureTrustee in connection with its duties in enforcing the rights of theNoteholders, the O/C Holder and Series Enhancers or (iv) to bona fide creditorsor potential creditors of the Transferor or the Trust for the limited purposeof enabling any such creditor to identify applicable Receivables subject tothis Agreement or the Indenture.  TheOwner Trustee hereby agrees to take such measures as shall be reasonablyrequested by the O/C Holder or the Transferor, acting at the direction of theO/C Holder, to protect and maintain the security and confidentiality of suchinformation.  The Owner Trustee shallprovide the Transferor and the O/C Holder with notice five (5) Business Daysprior to disclosure of any information of the type described in this Section5.07.  The Owner Trustee shall alsoenter into such reasonable confidentiality agreements as the Accounts Owner orthe Servicer shall deem necessary to protect its interests and as arereasonably acceptable in form and substance to the Owner Trustee.

 

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**ARTICLEVI**

** **

**CONCERNING THE OWNER TRUSTEE**

** **

SECTION 6.01.  Acceptanceof Trusts and Duties.  The OwnerTrustee accepts the trusts hereby created and agrees to perform its dutieshereunder with respect to such trusts, but only upon the terms of thisAgreement.  The Owner Trustee alsoagrees to disburse all moneys actually received by it constituting part of theTrust Estate upon the terms of the Transaction Documents.  The Owner Trustee shall not be personallyanswerable or accountable under any Transaction Document under anycircumstances, except (i) for its own willful misconduct, bad faith or grossnegligence in the performance of its duties or the omission to perform any suchduties or (ii) in the case of the inaccuracy of any representation orwarranty contained in Section 6.03 expressly made by the Owner Trustee in itsindividual capacity.  In particular, butnot by way of limitation:

 

(a)   the Owner Trustee shall not be personallyliable for any error of judgment made in good faith by the Owner Trustee;

 

(b)   the Owner Trustee shall not be personallyliable with respect to any action taken or omitted to be taken by it inaccordance with the instructions of the Administrator, the Transferor or theO/C Holder;

 

(c)   no provision of this Agreement or any otherTransaction Document shall require the Owner Trustee to expend or risk funds orotherwise incur any personal financial liability in the exercise or performanceof any of its duties, rights or powers hereunder or under any other TransactionDocument, if the Owner Trustee shall have reasonable grounds for believing thatrepayment of such funds or adequate indemnity against such risk or liability isnot reasonably assured or provided to it (as such and in its individualcapacity);

 

(d)   under no circumstances shall the OwnerTrustee be personally liable for indebtedness evidenced by or arising under anyof the Transaction Documents, including the principal of and interest on theNotes;

 

(e)   the Owner Trustee shall not be personallyresponsible for or in respect of the validity or sufficiency of this Agreement,the due execution hereof by the Transferor and the O/C Holder or the form,character, genuineness, sufficiency, value or validity of any of the TrustEstate, the Transaction Documents, the Notes or the Certificates other than thegenuineness of the Owner Trustee’s signature on the Certificates and thecertificate of authentication on the Certificates and its representations andwarranties in Section 6.03, and the Owner Trustee shall in no event assume orincur any personal liability, duty, or obligation to any Noteholder or to theOwner or any other Person, other than as expressly provided for herein or expresslyagreed to in the other Transaction Documents;

 

(f)    the Owner Trustee shall not be personallyliable for the default or misconduct of the Transferor, the O/C Holder, theServicer, the Administrator, the Note Administrator or the Indenture Trustee orany other Person under any of the Transaction Documents or otherwise, and theOwner Trustee shall have no obligation or personal liability to perform theobligations of the Trust under the Transaction Documents, including those thatare required to be performed by the Administrator under the AdministrationAgreement, the Indenture Trustee and the Note Administrator under the Indentureor the Servicer under the Transfer and Servicing Agreement;

 

(g)   the Owner Trustee shall be under noobligation to exercise any of the rights or powers vested in it by thisAgreement, or to institute, conduct or defend any litigation under thisAgreement or otherwise or in relation to this Agreement or any otherTransaction Document, at the request, order or direction of

 

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the Transferor or the O/CHolder, unless the O/C Holder has offered to the Owner Trustee (as such and inits individual capacity) security or indemnity satisfactory to it against thecosts, expenses and liabilities that may be incurred by the Owner Trusteetherein or thereby.  The right of theOwner Trustee to perform any discretionary act enumerated in this Agreement orany other Transaction Document shall not be construed as a duty, and the OwnerTrustee shall not be answerable or personally liable to any Person for any suchact other than liability to the Trust and the beneficial owners of the Trustfor its own gross negligence or willful misconduct in the performance of anysuch act or the omission to perform any such act; and

 

(h)   Notwithstanding anything contained herein tothe contrary, the Owner Trustee shall not be required to take any action in anyjurisdiction other than in the State of Delaware if the taking of such actionwill (i) require the registration with, licensing by or the taking of any othersimilar action in respect of, any state or other governmental authority oragency of any jurisdiction other than the State of Delaware by or with respectto the Owner Trustee (as such or in its individual capacity); (ii) result inany fee, tax or other governmental charge under the laws of any jurisdiction orany political subdivisions thereof in existence on the date hereof other thanthe State of Delaware becoming payable by the Owner Trustee (as such or in itsindividual capacity); or (iii) subject the Owner Trustee (as such or in itsindividual capacity) to personal jurisdiction in any jurisdiction other thanthe State of Delaware for causes of action arising from acts unrelated to theconsummation of the transactions by the Owner Trustee contemplated hereby.  The Owner Trustee shall be entitled toobtain advice of counsel (which advice shall be an expense of the O/C Holder)to determine whether any action required to be taken pursuant to this Agreementresults in any of the consequences described in clauses (i), (ii) and (iii) ofthe preceding sentence.  In the eventthat said counsel advises the Owner Trustee that such action will result insuch consequences, the Transferor, at the direction of the O/C Holder, shallappoint an additional trustee pursuant to Section 9.05 hereof to proceed withsuch action.

 

SECTION 6.02. Furnishing of Documents. The Owner Trustee shall furnish to the Transferor, the O/C Holder, theIndenture Trustee and the Note Administrator, promptly upon written requesttherefor, duplicates or copies of all reports, notices, requests, demands,certificates, financial statements and any other instruments furnished to theOwner Trustee under the Transaction Documents.

 

SECTION 6.03. Representations and Warranties. The Owner Trustee (as such and in its individual capacity) herebyrepresents and warrants to the Transferor and the O/C Holder that:

 

(a)   It is a Delaware banking corporation dulyorganized and validly existing in good standing under the laws of the State ofDelaware. It has all requisite corporate power and authority to execute,deliver and perform its obligations under this Agreement.

 

(b)   It has taken all corporate action necessaryto authorize the execution and delivery by it of this Agreement, and thisAgreement will be executed and delivered by one of its officers who is dulyauthorized to execute and deliver this Agreement on its behalf.

 

(c)   Neither the execution nor the delivery by itof this Agreement, nor the consummation by it of the transactions contemplatedhereby nor compliance by it with any of the terms or provisions hereof willcontravene any federal or Delaware law, governmental rule or regulationgoverning the banking or trust powers of the Owner Trustee (as such and in itsindividual capacity) or any judgment or order binding on it, or constitute anydefault under its charter documents or by-laws or any indenture, mortgage,contract, agreement or instrument to which it is a party or by which any of itsproperties may be bound.

 

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SECTION 6.04.  Reliance; Advice of Counsel.

 

(a)   The Owner Trustee shall incur no personalliability to anyone in acting upon any signature, instrument, notice,resolution, request, consent, order, certificate, report, opinion, bond, orother document or paper reasonably believed by it to be genuine and reasonablybelieved by it to be signed by the proper party or parties.  The Owner Trustee may accept a certifiedcopy of a resolution of the board of directors or other governing body of anyPerson as conclusive evidence that such resolution has been duly adopted bysuch body and that the same is in full force and effect.  As to any fact or matter the method of thedetermination of which is not specifically prescribed herein, the Owner Trusteemay for all purposes hereof rely on a certificate, signed by the president orany vice president or by the treasurer or other authorized officer of anappropriate Person, as to such fact or matter, and such certificate shallconstitute full protection to the Owner Trustee for any action taken or omittedto be taken by it in good faith in reliance thereon.

 

(b)   In the exercise or administration of thetrusts hereunder and in the performance of its duties and obligations underthis Agreement or the other Transaction Documents, the Owner Trustee (i) mayact directly or through its agents or attorneys pursuant to agreements enteredinto with any of them, and the Owner Trustee shall not be personally liable forthe conduct or misconduct of such agents or attorneys if such agents orattorneys shall have been selected by the Owner Trustee with reasonable care,and (ii) may consult with counsel, accountants and other skilled Persons to beselected with reasonable care and employed by it.  The Owner Trustee shall not be personally liable for anythingdone, suffered or omitted in good faith by it in accordance with the writtenopinion or written advice of any such counsel, accountants or other suchPersons.

 

SECTION 6.05. Not Acting in Individual Capacity.  Except as expressly provided in this Article VI, in accepting thetrusts hereby created, Wilmington Trust Company acts solely as Owner Trusteehereunder and not in its individual capacity, and all Persons having any claimagainst the Owner Trustee by reason of the transactions contemplated by anyTransaction Document shall look only to the Trust Estate for payment orsatisfaction thereof.

 

SECTION 6.06. Owner Trustee Not Liable for Certificates, Notes or Receivables.  The statements contained herein and in theCertificates, Notes, and other Transaction Documents (other than thegenuineness of the signature and authentication (as applicable) of the OwnerTrustee on the Certificates and its representations and warranties in Section6.03) shall be taken as the statements of the Transferor, and the Owner Trusteeassumes no responsibility for the correctness thereof.  The Owner Trustee makes no representationsas to the validity or sufficiency of this Agreement, any other TransactionDocument or the Certificates (other than the genuineness of the signature andauthentication (as applicable) of the Owner Trustee on the Certificates), theNotes, or related documents.  The Owner Trusteeshall at no time have any responsibility or personal liability for or withrespect to the legality, validity and enforceability of the Receivables or theperfection and priority of any security interest in the Receivables or themaintenance of any such perfection and priority, or for or with respect to thesufficiency of the Trust Estate or its ability to generate the payments to bedistributed to the Noteholders or the O/C Holder under the Indenture,including, without limitation:  theexistence, condition and ownership of the Receivables; the existence andcontents of the Receivables on any computer or other record thereof; thevalidity of the assignment of the Receivables to the Trust or of anyintervening assignment; the completeness of the Receivables; the performance orenforcement of the Receivables; the compliance by the Transferor or the O/CHolder with any warranty or representation made under any Transaction Documentor in any related document or the accuracy of any such warranty orrepresentation or any action of the Administrator, the Servicer, the IndentureTrustee or the Note Administrator taken in the name of the Owner Trustee.

 

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SECTION 6.07. Owner Trustee May Own Notes. The Owner Trustee in its individual or any other capacity may become theowner or pledgee of Notes and may deal with the Transferor, the O/C Holder, theAdministrator, the Servicer, the Indenture Trustee or the Note Administrator inbanking transactions with the same rights as it would have if it were not OwnerTrustee.

** **

**ARTICLEVII**

** **

**COMPENSATION OF OWNER TRUSTEE**

** **

SECTION 7.01.  OwnerTrustee’s Fees and Expenses.  TheOwner Trustee (in its individual capacity) shall receive as compensation forits services hereunder such fees as have been separately agreed upon before thedate hereof between the O/C Holder and the Owner Trustee (in its individualcapacity), and the Owner Trustee (in its individual capacity) shall be entitledto be reimbursed by the O/C Holder for its other reasonable expenses hereunder,including the reasonable compensation, expenses and disbursements of suchagents, representatives, experts and counsel as the Owner Trustee may employ inconnection with the exercise and performance of its rights and its dutieshereunder and under the Transaction Documents; provided, however,that the Owner Trustee’s right to enforce such obligations shall be subject tothe provisions of Section 10.08.

 

SECTION 7.02. Indemnification. To the fullest extent permitted by law, the O/CHolder shall indemnify, defend and hold harmless the Owner Trustee (as such andin its individual capacity) and its successors, assigns, directors, officers,agents, employees and servants (collectively, the “**Indemnified Parties**”)from and against, any and all liabilities, obligations, losses, damages, taxes,claims, actions and suits, and any and all reasonable costs, expenses anddisbursements (including reasonable legal fees and expenses) of any kind andnature whatsoever (collectively, “**Expenses**”) which may at any time beimposed on, incurred by, or asserted against the Owner Trustee or anyIndemnified Party in any way relating to or arising out of the TransactionDocuments, the Trust Estate, the acceptance and administration of the TrustEstate or any action or inaction of the Owner Trustee; provided that theO/C Holder shall not be liable for or required to indemnify any IndemnifiedParty from and against Expenses arising or resulting from any of the mattersdescribed in the third sentence of Section 6.01 or Expenses for which indemnificationis actually received under other Transaction Documents; providedfurtherthat the O/C Holder shall not be liable for or required to indemnify anIndemnified Party from and against expenses arising or resulting from (i) theIndemnified Party’s own willful misconduct, bad faith or gross negligence, or(ii) the inaccuracy of any representation or warranty contained in Section6.03.  An Indemnified Party’s right toenforce such obligation shall be subject to the provisions of Section10.08.  The indemnities contained inthis Section 7.02 shall survive the resignation and termination of the OwnerTrustee or the termination of this Agreement.

 

SECTION 7.03. Payments to the Owner Trustee. Any amounts paid to an Indemnified Party pursuant to this Article VIIshall not be construed to be a part of the Trust Estate.

** **

**ARTICLE VIII**

** **

**TERMINATION OF TRUST AGREEMENT**

** **

SECTION 8.01.  Terminationof Trust Agreement.

 

(a)   The Trust shall dissolve upon the earlier of(i) January 1, 2022 (the “**Trust Termination Date**”), and(ii) dissolution of the Trust in accordance with applicable law.  After satisfaction of liabilities of theTrust as provided by applicable law, any money or other property held as partof the Trust Estate following such distribution shall be distributed to the O/CHolder.  The bankruptcy, liquidation,

 

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dissolution, termination,death or incapacity of the Transferor or the O/C Holder shall not (x) operateto terminate this Agreement or annul, dissolve or terminate the Trust, or (y)entitle the Transferor’s or the O/C Holder’s legal representatives or heirs toclaim an accounting or to take any action or proceeding in any court for apartition or winding up of all or any part of the Trust or Trust Estate or (z)otherwise affect the rights, obligations and liabilities of the parties hereto.

 

(b)   Except as provided in subsection 8.01(a),neither the Transferor nor the O/C Holder shall be entitled to revoke, dissolveor terminate the Trust.  The Owner shallnot be entitled to revoke, dissolve or terminate the Trust.

 

(c)   Upon completion of the winding up of theTrust in accordance with the Business Trust Statute, the Owner Trustee shallcause the Certificate of Trust to be canceled by filing a certificate ofcancellation with the Secretary of State in accordance with the provisions ofSection 3810 of the Business Trust Statute and thereupon the Trust and thisAgreement (other than Articles VI and VII and Section 10.08) shall terminate.

** **

**ARTICLEIX**

** **

**SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES**

** **

SECTION 9.01. Eligibility Requirements for Owner Trustee.  The Owner Trustee shall at all times be aPerson satisfying the provisions of Section 3807(a) of the Business TrustStatute; authorized to exercise trust powers; having a combined capital andsurplus of at least $50,000,000 and subject to supervision or examination byfederal or state authorities; and having (or having a parent which has) arating of at least Baa3 by Moody’s and at least BBB- by Standard & Poor’s,or otherwise satisfactory to each Rating Agency (it being understood thatWilmington Trust Company is satisfactory to each Rating Agency).  If such Person shall publish reports ofcondition at least annually, pursuant to law or to the requirements of theaforesaid supervising or examining authority, then for the purpose of thisSection 9.01, the combined capital and surplus of such Person shall be deemedto be its combined capital and surplus as set forth in its most recent reportof condition so published.  In case atany time the Owner Trustee shall cease to be eligible in accordance with theprovisions of this Section 9.01, the Owner Trustee shall resign immediately inthe manner and with the effect specified in Section 9.02.

 

SECTION 9.02.  Resignation or Removal of Owner Trustee.  The Owner Trustee may at any time resign andbe discharged from the trusts hereby created by giving written notice thereofto the Transferor and the O/C Holder; provided, however, thatsuch resignation and discharge shall only be effective upon the appointment ofa successor Owner Trustee.  Uponreceiving such notice of resignation, the Transferor, at the direction of theO/C Holder, shall promptly appoint a successor Owner Trustee by writteninstrument, in duplicate, one copy of which instrument shall be delivered tothe resigning Owner Trustee and one copy to the successor Owner Trustee.  If no successor Owner Trustee shall havebeen so appointed and have accepted appointment within thirty (30) days afterthe giving of such notice of resignation, the resigning Owner Trustee, at theexpense of the O/C Holder, shall petition any court of competent jurisdictionfor the appointment of a successor Owner Trustee.

 

If at any time the Owner Trustee shall cease to be eligible inaccordance with the provisions of Section 9.01 and shall fail to resign afterwritten request therefor by the O/C Holder, or if at any time the Owner Trusteeshall be legally unable to act, or shall be adjudged bankrupt or insolvent, ora receiver of the Owner Trustee or of its property shall be appointed, or anypublic officer shall take charge or control of the Owner Trustee or of itsproperty or affairs for the purpose of rehabilitation, conservation orliquidation, then the O/C Holder shall remove the Owner Trustee.  If the O/C Holder shall remove the OwnerTrustee under the authority of the immediately preceding sentence, the O/CHolder shall promptly

 

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(i) appoint a successor Owner Trustee by writteninstrument, in duplicate, one copy of which instrument shall be delivered tothe outgoing Owner Trustee so removed and one copy to the successor OwnerTrustee and (ii) pay or cause to be paid all amounts owed to the outgoing OwnerTrustee in its individual capacity.

 

Any resignation or removal of the Owner Trustee and appointment of asuccessor Owner Trustee pursuant to any of the provisions of this Section 9.02shall not become effective until acceptance of appointment by the successorOwner Trustee pursuant to Section 9.03 and, in the case of removal, payment ofall fees and expenses owed to the outgoing Owner Trustee (as such or in itsindividual capacity).  The O/C Holdershall provide notice of such resignation or removal of the Owner Trustee to eachRating Agency.

 

SECTION 9.03. Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to Section 9.02 shallexecute, acknowledge and deliver to the O/C Holder and the Transferor and toits predecessor Owner Trustee an instrument accepting such appointment underthis Agreement, and thereupon the resignation or removal of the predecessorOwner Trustee shall become effective and such successor Owner Trustee, withoutany further act, deed or conveyance, shall become fully vested with all therights, powers, duties, and obligations of its predecessor under thisAgreement, with like effect as if originally named as Owner Trustee.  The predecessor Owner Trustee shall uponpayment of its fees and expenses deliver to the successor Owner Trustee alldocuments and statements and monies held by it under this Agreement; and theO/C Holder, the Transferor and the predecessor Owner Trustee shall execute anddeliver such instruments and do such other things as may reasonably be requiredfor fully and certainly vesting and confirming in the successor Owner Trusteeall such rights, powers, duties, and obligations.

 

No successor Owner Trustee shall accept appointment as provided in thisSection 9.03 unless at the time of such acceptance such successor Owner Trusteeshall be eligible pursuant to Section 9.01.

 

Upon acceptance of appointment by a successor Owner Trustee pursuant tothis Section 9.03, the O/C Holder shall mail notice of such acceptance ofappointment including the name of such successor Owner Trustee to theTransferor, the Indenture Trustee, the Note Administrator, the Noteholders andeach Rating Agency.  If the O/C Holdershall fail to mail such notice within ten (10) days after acceptance ofappointment by the successor Owner Trustee, the successor Owner Trustee shallcause such notice to be mailed at the expense of the O/C Holder.

 

Upon acceptance of appointment by a successor Owner Trustee pursuant tothis Section 9.03, such successor Owner Trustee shall file an amendment to theCertificate of Trust with the Secretary of State identifying the name andprincipal place of business of such successor Owner Trustee in the State ofDelaware.

 

SECTION 9.04. Merger or Consolidation of Owner Trustee.  Notwithstanding anything herein to thecontrary, any Person into which the Owner Trustee may be merged or converted orwith which it may be consolidated, or any Person resulting from any merger,conversion or consolidation to which the Owner Trustee shall be a party, or anyPerson succeeding to all or substantially all of the corporate trust businessof the Owner Trustee, shall be the successor of the Owner Trustee hereunder(provided that such Person shall meet the eligibility requirements set forth inSection 9.01), without the execution or filing of any instrument or any furtheract on the part of any of the parties hereto; providedfurtherthat (a) the Owner Trustee shall mail notice of such merger or consolidation toeach Rating Agency and (b) the Owner Trustee shall file any necessaryamendments to the Certificate of Trust with the Secretary of State.

 

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SECTION 9.05. Appointment of Co-Trustee or Separate Trustee.  Notwithstanding any other provisions of thisAgreement, at any time, for the purpose of meeting any legal requirements ofany jurisdiction in which any part of the Trust Estate may at the time belocated, the O/C Holder and the Owner Trustee acting jointly shall have thepower and shall execute and deliver all instruments to appoint one or morePersons approved by each of the O/C Holder and the Owner Trustee to act asco-trustee, jointly with the Owner Trustee, or separate trustee or separatetrustees, of all or any part of the Trust Estate, and to vest in such Person,in such capacity, such title to the Trust, or any part thereof, and, subject tothe other provisions of this Section 9.05, such powers, duties, obligations,rights and trusts as the O/C Holder and the Owner Trustee may considernecessary or desirable.  If the O/CHolder shall not have joined in such appointment within fifteen (15) days afterthe receipt by it of a request so to do, the Owner Trustee alone shall have thepower to make such appointment.  Noco-trustee or separate trustee under this Agreement shall be required to meetthe terms of eligibility as a successor trustee pursuant to Section 9.01 and nonotice of the appointment of any co-trustee or separate trustee shall berequired pursuant to Section 9.03.

 

Each separate trustee and co-trustee shall, to the extent permitted bylaw, be appointed and act subject to the following provisions and conditions:

 

(i)            allrights, powers, duties, and obligations conferred or imposed upon the OwnerTrustee shall be conferred upon and exercised or performed by the Owner Trusteeand such separate trustee or co-trustee jointly (it being understood that suchseparate trustee or co-trustee is not authorized to act separately without theOwner Trustee joining in such act), except to the extent that under any law ofany jurisdiction in which any particular act or acts are to be performed, theOwner Trustee shall be incompetent or unqualified to perform such act or acts,in which event such rights, powers, duties, and obligations (including theholding of title to the Trust or any portion thereof in any such jurisdiction)shall be exercised and performed singly by such separate trustee or co-trustee,but solely at the direction of the Owner Trustee;

 

(ii)           notrustee under this Agreement shall be personally liable by reason of any act oromission of any other trustee under this Agreement; and

 

(iii)          theO/C Holder and the Owner Trustee acting jointly may at any time accept theresignation of or remove any separate trustee or co-trustee.

 

Any notice, request or other writing given to the Owner Trustee shallbe deemed to have been given to each of the then separate trustees andco-trustees, as effectively as if given to each of them. Every instrumentappointing any separate trustee or co-trustee shall refer to this Agreement andthe conditions of this Section 9.05. Each separate trustee and co-trustee, upon its acceptance of the trustsconferred, shall be vested with the estates or property specified in itsinstrument of appointment, either jointly with the Owner Trustee or separately,as may be provided therein, subject to all the provisions of this Agreement,specifically including every provision of this Agreement relating to theconduct of, affecting the liability of, or affording protection to, the OwnerTrustee.  Each such instrument shall befiled with the Owner Trustee and a copy thereof given to the Transferor and theO/C Holder.

 

Any separate trustee or co-trustee may at any time appoint the OwnerTrustee, its agent or attorney-in-fact with full power and authority, to theextent not prohibited by law, to do any lawful act under or in respect of thisAgreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable ofacting, resign or be removed, all of its estates, properties, rights, remediesand trusts shall vest in and be exercised by the Owner Trustee, to the extentpermitted by law, without the appointment of a new or successor trustee.

 

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**ARTICLEX**

** **

**MISCELLANEOUS**

** **

SECTION 10.01.  Supplements and Amendments.  This Agreement may be amended from time totime, by a written amendment duly executed and delivered by the Transferor, theO/C Holder and the Owner Trustee, with the written consent of the IndentureTrustee, but without the consent of any of the Noteholders, and uponsatisfaction of the Rating Agency Condition, (1) to cure any ambiguity, (2) tocorrect or supplement any provisions in this Agreement or (3) to add any otherprovisions with respect to matters or questions arising under this Agreementwhich shall not be inconsistent with the provisions of this Agreement; provided,however, that such amendment will not, as evidenced by an Opinion ofCounsel addressed and delivered to the Owner Trustee, the Note Administratorand the Indenture Trustee, cause the Trust to be classified as an association(or a publicly traded partnership) taxable as a corporation for federal incometax purposes; providedfurther that Section 2.03 of thisAgreement may be amended only with the consent of the Holders of Notesevidencing not less than a majority of the Outstanding Amount of the Notes(other than Notes actually known to a Responsible Officer of the IndentureTrustee to be held by the Transferor, its affiliates or its agents).  Additionally, notwithstanding the precedingsentence, this Agreement may be amended by the Transferor, the O/C Holder andthe Owner Trustee without the consent of the Indenture Trustee or any of theNoteholders to add, modify or eliminate such provisions as may be necessary oradvisable in order to enable all or a portion of the Trust (i) to qualify as,and to permit an election to be made to cause the Trust to be treated as, a“financial asset securitization investment trust” as described in theprovisions of Section 860L of the Code, (ii) to avoid the imposition of stateor local income or franchise taxes imposed on the Trust’s property or itsincome or (iii) if such amendment is (a) administrative in nature or (b)entered into for the purpose of preserving the intended sales treatment underGAAP of the transactions contemplated in the Transaction Documents; provided,however, that (1) the O/C Holder delivers to the Indenture Trustee,the Note Administrator and the Owner Trustee an Officer’s Certificate, and withrespect to clause (iii)(b) above, a Tax Opinion, to the effect that theproposed amendments meet the requirements set forth in this subsection,(2) the Rating Agency Condition shall have been satisfied with respect tosuch amendment and  (3) such amendmentdoes not adversely affect the rights, benefits, protections, privileges,immunities, duties or obligations of the Owner Trustee hereunder without theconsent of the Owner Trustee; providedfurther, however,that such amendment will not significantly change the activities of the Trustas set forth in Section 2.03.

 

This Agreement may also be amended from time to time by a writtenamendment duly executed and delivered by the Transferor, the O/C Holder and theOwner Trustee, with the consent of the Indenture Trustee and the Holders ofNotes evidencing not less than a majority of the Outstanding Amount of theNotes (other than Notes actually known to a Responsible Officer of theIndenture Trustee to be held by the Transferor, its affiliates or its agents),and upon satisfaction of the Rating Agency Condition for the purpose of addingany provisions to or changing in any manner or eliminating any of theprovisions of this Agreement or of modifying in any manner the rights of theNoteholders; provided, however, that without the consent of allNoteholders (other than Notes actually known by a Responsible Officer of theIndenture Trustee to be held by the Transferor, its affiliates or its agents),no such amendment shall (a) increase or reduce in any manner the amount of, oraccelerate or delay the timing of distributions that are required to be madefor the benefit of the Noteholders or (b) reduce the aforesaid percentage ofthe Outstanding Amount of the Notes, the Holders of which are required toconsent to any such amendment; providedfurther, that suchamendment will not, as evidenced by an Opinion of Counsel addressed anddelivered to the Owner Trustee, the Note Administrator and the IndentureTrustee, cause the Trust to be classified as an association (or a publiclytraded partnership) taxable as a corporation for federal income tax purposes.

 

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Promptly after the execution of any such amendment or consent, the O/CHolder shall furnish written notification of the substance of such amendment orconsent to the Indenture Trustee, the Note Administrator and each RatingAgency.

 

It shall not be necessary for the consent of the Noteholders pursuantto this Section 10.01 to approve the particular form of any proposed amendmentor consent, but it shall be sufficient if such consent shall approve thesubstance thereof.

 

Promptly after the execution of any amendment to the Certificate ofTrust, the Owner Trustee shall cause the filing of such amendment with theSecretary of State.

 

The Owner Trustee shall be entitled to receive, and shall be fullyprotected in relying upon, an Officer’s Certificate of the Transferor to theeffect that the conditions to amendment have been satisfied.

 

The Owner Trustee may, but shall not be obligated to, enter into, andunless it has consented thereto in writing shall not be bound by, any amendmentwhich affects the Owner Trustee’s own rights, duties, benefits, protections,privileges or immunities (as such or in its individual capacity) under thisAgreement or otherwise.

 

SECTION 10.02.  No Legal Title to Trust Estate inTransferor or O/C Holder.  Neitherthe Transferor nor the O/C Holder shall have legal title to any part of theTrust Estate.  No transfer, by operationof law or otherwise, of any right, title, and interest of the Transferor or theO/C Holder to and in its undivided beneficial interest in the Trust Estateshall operate to terminate this Agreement or annul, dissolve or terminate theTrust or entitle any transferee to an accounting or to the transfer to it oflegal title to any part of the Trust Estate.

 

SECTION 10.03.  Limitations on Rights of Others.  The provisions of this Agreement are solelyfor the benefit of the Owner Trustee (as such or in its individual capacity),the other Indemnified Parties, the Transferor, the O/C Holder, the holder ofany Certificate and, to the extent expressly provided herein, the IndentureTrustee, the Note Administrator and the Noteholders, and nothing in thisAgreement, whether express or implied, shall be construed to give to any otherPerson any legal or equitable right, remedy or claim in the Trust Estate orunder or in respect of this Agreement or any covenants, conditions orprovisions contained herein.

 

SECTION 10.04.  Notices.  Unless otherwise expressly specified or permitted by the termshereof, all notices and other communications shall be in writing and shall bedeemed given upon receipt by the intended recipient or three (3) Business Daysafter mailing if mailed by certified mail, postage prepaid (except that noticeto the Owner Trustee, the Transferor, the O/C Holder, the Note Administrator orthe Indenture Trustee shall be deemed given only upon actual receipt by theOwner Trustee, the Transferor, the O/C Holder, the Note Administrator or theIndenture Trustee), if to the Owner Trustee, addressed to the Corporate TrustOffice; if to the Indenture Trustee, addressed to U.S. Bank NationalAssociation, 180 East Fifth Street, St. Paul, Minnesota 55101, Attention:Structured Finance/Project PACCT; if to the Note Administrator, addressed toCitibank, N.A., 111 Wall Street, Zone 3, 14th Floor, New York, New York 10005,Attention: Project PACCT; if to the Transferor, addressed to PACCT, LLC, c/oProvidian Financial Corporation, 201 Mission Street, San Francisco, California94105, Attention: Chief Financial Officer; if to the O/C Holder, addressed toCSG Funding, LLC, c/o CompuCredit Corporation, 245 Perimeter Center Parkway,Suite 600, Atlanta, Georgia 30346; or, as to each party, at such other addressas shall be designated by such party in a written notice to each other party.

 

SECTION 10.05.  Severability.  Any provision of this Agreement that isprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,be ineffective to the extent of such

 

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prohibition orunenforceability without invalidating the remaining provisions hereof, and anysuch prohibition or unenforceability in any jurisdiction shall not invalidateor render unenforceable such provision in any other jurisdiction.

 

SECTION 10.06.  Separate Counterparts.  This Agreement may be executed by theparties hereto in separate counterparts, each of which when so executed anddelivered shall be an original, but all such counterparts shall togetherconstitute but one and the same instrument.

 

SECTION 10.07.  Successors and Assigns.  All covenants and agreements containedherein shall be binding upon, and inure to the benefit of, the Transferor andthe O/C Holder and their permitted assignees and the Owner Trustee (as such orin its individual capacity) and its successors, all as herein provided.  Any request, notice, direction, consent,waiver or other instrument or action by the Transferor or the O/C Holder shallbind the successors and assigns of the Transferor or the O/C Holder,respectively.

 

SECTION 10.08.  Nonpetition Covenants.  To the fullest extent permitted byapplicable law, notwithstanding any prior termination of the Trust or thisAgreement, Wilmington Trust Company, individually or in its capacity as OwnerTrustee, shall not at any time with respect to the Trust, acquiesce, petitionor otherwise invoke or cause the Trust to invoke the process of any court orgovernmental authority for the purpose of commencing or sustaining a case againstthe Trust under any federal or state bankruptcy, insolvency or similar law orappointing a receiver, conservator, liquidator, assignee, trustee, custodian,sequestrator or other similar official of the Trust or any substantial part ofits property, or ordering the winding up or liquidation of the affairs of theTrust; provided, however, that this Section 10.08 shall notoperate to preclude any remedy described in Article V of the Indenture.

 

To the fullest extent permitted by applicable law, notwithstanding anyprior termination of the Trust or this Agreement, the Transferor and the O/CHolder shall not at any time with respect to the Trust, acquiesce, petition orotherwise invoke or cause the Trust to invoke the process of any court orgovernmental authority for the purpose of commencing or sustaining a caseagainst the Trust under any federal or state bankruptcy, insolvency or similarlaw or appointing a receiver, conservator, liquidator, assignee, trustee,custodian, sequestrator or other similar official of the Trust or anysubstantial part of its property, or ordering the winding up or liquidation ofthe affairs of the Trust; provided, however, that this Section10.08 shall not operate to preclude any remedy described in Article V of theIndenture.

 

SECTION 10.09.  No Recourse.  Each Person holding or owning a Certificate,by accepting the Certificates, acknowledges that the Certificates do notrepresent interests in or obligations of the Servicer, the Transferor, the O/CHolder, Providian National Bank, the Owner Trustee (as such or in itsindividual capacity), the Indenture Trustee, the Note Administrator or anyAffiliate thereof (other than the Trust), and no recourse may be had againstsuch parties or their assets, or against the assets pledged under theIndenture, except as expressly provided in the Transaction Documents.

 

SECTION 10.10.  Headings.  The headings of the various Articles and Sections herein are forconvenience of reference only and shall not define or limit any of the terms orprovisions hereof.

 

SECTION 10.11.  GOVERNING LAW.  THIS AGREEMENT SHALL BE CONSTRUED INACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITSCONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THEPARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

SECTION 10.12.  Acceptance of Terms of Agreement.   THE RECEIPT AND ACCEPTANCE OF THE OWNERSHIPINTEREST CERTIFICATE BY THE OWNER AND THE

 

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TRANSFEROR CERTIFICATE BYTHE TRANSFEROR, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALLCONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE OWNER AND THE TRANSFEROR,RESPECTIVELY, OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT, AND SHALLCONSTITUTE THE AGREEMENT OF THE TRUST THAT THE TERMS AND PROVISIONS OF THISAGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS AMONG THE TRUST, THEOWNER, THE TRANSFEROR AND THE O/C HOLDER.

 

SECTION 10.13.  Integration of Documents.  This Agreement constitutes the entire agreementof the parties hereto and thereto with respect to the subject matter hereof andsupersedes all prior agreements relating to the subject matter hereof.

 

[Signature Page toFollow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beduly executed by their respective officers hereunto duly authorized, as of theday and year first above written.

 
|   | WILMINGTON TRUST COMPANY,  as Owner Trustee |
|--------|---------------------------------------------|
|   |                                        |   |
|   |                                        |   |
|   | By:                                         |   |
|   |                                        | Name: |
|   |                                        | Title: |
|   |                                        |   |
|   | PACCT, LLC,  as Transferor                  |
|   |                                        |   |
|   |                                        |   |
|   | By:                                         |   |
|   |                                        | Name: |
|   |                                        | Title: |
|   |                                        |   |
|   | CSG FUNDING, LLC,  as O/C Holder            |
|   |                                        |   |
|   |                                        |   |
|   | By:                                         |   |
|   |                                        | Name: |
|   |                                        | Title: |
|        |                                             |  |  |  |

 

 

[Signature Page to TrustAgreement]

 

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**EXHIBIT A**

 

Form of Ownership Interest Certificate

 

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (ORANY INTEREST HEREIN) MAY NOT BE TRANSFERRED TO ANY PERSON EXCEPT IN ACCORDANCEWITH THE TRUST AGREEMENT REFERRED TO HEREIN.

 

CSGQ TRUST

 

OWNER CERTIFICATE

 

 

R-1

 

(This Certificate does not represent an interest in or obligation ofPACCT, LLC, CSG Funding, LLC, CSG, LLC or any of their respective affiliates,except to the extent described below.)

 

THIS CERTIFIES THAT PACCT, LLC is the registered Owner of the CSGQTrust (the “**Trust**”).

 

The Trust was created pursuant to (i) the filing of the Certificate ofTrust with the Secretary of State of the State of Delaware and (ii) the CSGQTrust Trust Agreement, dated as of June 24, 2002 (the “**TrustAgreement**”), among PACCT, LLC (the “**Transferor**”), CSGFunding, LLC (the “**O/C Holder**”) and Wilmington TrustCompany, as owner trustee (not in its individual capacity but solely as ownertrustee, the “**Owner Trustee**”). To the extent not otherwise defined herein, the capitalized terms usedherein have the meanings assigned to them in the Trust Agreement, including asspecified in subsection 1.02(a) of the Trust Agreement.

 

This Certificate is the duly authorized Certificate evidencing abeneficial ownership interest in the Trust (herein called the “**Certificate**”).  This Certificate is issued under and issubject to the terms, provisions and conditions of the Trust Agreement,including the rights of the holder of the Transferor Certificate to which TrustAgreement the holder by virtue of the acceptance hereof assents and by whichthe holder is bound.

 

Notwithstanding any prior termination of the Trust Agreement, theholder, by its acceptance of this Certificate, covenants and agrees that itshall not at any time with respect to the Trust, acquiesce, petition orotherwise invoke or cause the Trust to invoke the process of any court orgovernmental authority for the purpose of commencing or sustaining a caseagainst the Trust under any federal or state bankruptcy, insolvency or similarlaw or appointing a receiver, conservator, liquidator, assignee, trustee,custodian, sequestrator or other similar official of the Trust or anysubstantial part of its property, or ordering the winding up or liquidation ofthe affairs of the Trust.

 

Unless the certificate of authentication hereon shall have been executedby the Owner Trustee, by manual signature, this Certificate shall not entitlethe holder hereof to any benefit under the Trust Agreement, the Transfer andServicing Agreement or the Indenture or be valid for any purpose.

 

A-1

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THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THESTATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THEOBLIGATIONS, RIGHTS, AND REMEDIES OF THE HOLDER SHALL BE DETERMINED IN ACCORDANCEWITH SUCH LAWS.

 

A-2

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IN WITNESS WHEREOF, the Trust has caused this Certificate to be dulyexecuted.

 
|                                                                                                          | CSGQ TRUST                                                  |
|---------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------|
|                                                                                                          |                                                        |
|                                                                                                          | By:    WILMINGTON TRUST COMPANY,                  |
|                                                                                                          | not in its individual capacity but solely as Owner  Trustee |
|                                                                                                          |                                                        |
|                                                                                                          |                                                        |
| Dated:                 , 2002 | By:                                                         |   |
|                                                                                                          | Name:                                                       |
|                                                                                                          | Title:                                                      |
|                                                                                                               |                                                             |  |  |

 

 

**CERTIFICATEOF AUTHENTICATION**

 

This is the Certificate referred to in the within-mentioned TrustAgreement.

 
|   | WILMINGTON TRUST COMPANY,  not in its individual capacity but solely  as Owner Trustee |
|--------|----------------------------------------------------------------------------------------|
|   |                                                                                   |
|   |                                                                                   |
|   | By:                                                                                    |   |
|   |                                                                                   | Authorized Signatory |
|   |                                                                                   |   |

 

A-3

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**ANNEX1 TO EXHIBIT A**

 

Registered Owner and address:

 

PACCT, LLC

c/o Providian Financial Corporation

201 Mission Street

San Francisco, California 94105

 

Tax Identification Number: 71-0891098

 

A-4

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**EXHIBIT B**

**Formof Transferor Certificate**

 

THIS TRANSFEROR CERTIFICATE HAS NOT BEEN REGISTEREDUNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS TRANSFEROR CERTIFICATE NOR ANY PORTION HEREOF MAY BEOFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCHACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.

 

THIS TRANSFEROR CERTIFICATE IS NOT PERMITTED TO BETRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT INCOMPLIANCE WITH THE TERMS OF THE TRUST AGREEMENT REFERRED TO HEREIN.

 

| No. R-__ |   | One Unit |
|----------|--------|----------|

 

**CSGQ TRUST**

**TRANSFEROR CERTIFICATE**

 

**THIS CERTIFICATE REPRESENTS AN INTEREST**

**IN CERTAIN ASSETS OF THE**

**CSGQ TRUST**

 

Evidencing an interest in a trust, the corpus of which consistsprimarily of receivables generated from time to time in the ordinary course ofbusiness in a portfolio of revolving credit card accounts transferred by PACCT,LLC (the “**Transferor**”).

 

(Notan interest in or obligation of the Transferor, the O/C Holder, ProvidianNational Bankor any affiliate thereof)

 

This certifies that PACCT, LLC is the registered owner of an undividedbeneficial interest in the assets of a trust (the “**Trust**”), subject tothe lien of the Notes as provided in the Master Indenture, dated the datehereof (as amended and supplemented, the “**Indenture**”), among U.S. Bank NationalAssociation, as Indenture Trustee, Citibank, N.A., as Note Administrator, andthe Trust, established pursuant to the Trust Agreement, dated as of June 24,2002 (as amended and supplemented, the “**Trust Agreement**”), among theTransferor, CSG Funding, LLC, as O/C Holder (the “**O/C Holder**”), andWilmington Trust Company, as owner trustee (not in its individual capacity, butsolely as owner trustee the “**Owner Trustee**”).  The corpus of the Trust consists of (a) aportfolio of certain receivables (the “**Receivables**”) existing in the revolvingcredit card accounts identified under the Transfer and Servicing Agreement,dated the date hereof, as amended from time to time (the “**Transfer and Servicing Agreement**”),among the Transferor, CompuCredit Corporation, as Servicer (the “**Servicer**”),the O/C Holder and the Trust, as Issuer, from time to time (the “**Accounts**”),(b) certain funds collected or to be collected from accountholders in respectof the Receivables, (c) all funds which are from time to time on deposit in theCollection Account and in the Series Accounts, (d) the benefits of any SeriesEnhancements issued and to be issued by Series Enhancers with respect to one ormore Series and (e) all other assets and interests constituting the Trust,including Interchange and Recoveries allocated to the Trust pursuant to theTransfer and Servicing Agreement.  ThisCertificate does not purport to summarize the Agreements and reference is madeto the Agreements for information with respect to the interests, rights,benefits, obligations, proceeds and duties evidenced hereby and the rights,duties and obligations of the Owner Trustee. A copy of the Agreements may be requested from the Owner Trustee bywriting to the Owner

 

B-1

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Trustee at the Corporate Trust Office.  To the extent not defined herein, thecapitalized terms used herein have the meanings ascribed to them in theAgreements.

 

This Certificate is issued under and is subject to the terms,provisions and conditions of the Agreements, to which Agreements, as amendedand supplemented from time to time, the Transferor by virtue of the acceptancehereof assents and is bound.

 

The Receivables consist of Principal Receivables which arise generallyfrom the purchase of merchandise and services and amounts advanced tocardholders as cash advances and Finance Charge Receivables which arisegenerally from Periodic Rate Finance Charges, Late Fees and other fees andcharges with respect to the Accounts.

 

This Certificate (this “**Certificate**”) is the TransferorCertificate, which represents the undivided beneficial interest in certainassets of the Trust, subject to the lien of the Notes and the O/C Certificate,including the right to receive a portion of the Collections and other amountsat the times and in the amounts specified in the Indenture.  In addition to the Transferor Certificate,Notes and the O/C Certificate will be issued to investors pursuant to theIndenture.

 

Unless otherwise specified in an Indenture Supplement with respect to aparticular Series, the Transferor has entered into the Transfer and ServicingAgreement, and this Certificate is issued, with the intention that, forfederal, state and local income and franchise tax purposes, (a) the Notes ofeach Series which are characterized as indebtedness at the time of theirissuance will qualify as indebtedness of the O/C Holder secured by theReceivables and (b) the Trust shall not be treated as an association (or apublicly traded partnership) taxable as a corporation.  The Transferor by the acceptance of thisCertificate, agrees to treat the Notes for federal, state and local income andfranchise tax purposes as indebtedness of the O/C Holder.

 

Subject to certain conditions and exceptions specified in theAgreements, the obligations created by the Agreements and the Trust createdthereby shall terminate upon the earlier of (a) January 1, 2022 (the“**TrustTermination Date**”) and (b) dissolution of the Trust inaccordance with applicable law.

 

B-2

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Unless the certificate of authentication hereon has been executed by oron behalf of the Owner Trustee, by manual signature, this Certificate shall notbe entitled to any benefit under the Trust Agreement or be valid for anypurpose.

 

IN WITNESS WHEREOF, the Trust has caused this Certificate to be dulyexecuted.

 
|                                                                                                                                                                      | CSGQ TRUST |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|
|                                                                                                                                                                      |       |   |
|                                                                                                                                                                      | By:        | WILMINGTON TRUST COMPANY  not in its individual capacity but solely as Owner Trustee |
|                                                                                                                                                                      |       |   |
|                                                                                                                                                                      | By:        |   |
|                                                                                                                                                                      |       | Name: |
|                                                                                                                                                                      |       | Title: |
| Dated:   [                    ,       ] |       |   |

 

B-3

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TRUSTEE’S CERTIFICATE OFAUTHENTICATION

 

This is the Transferor Certificate described in the within-mentionedTrust Agreement.

 
|   | WILMINGTON TRUST COMPANY,                 |
|--------|-------------------------------------------|
|   | not in its individual capacity but solely |
|   | as Owner Trustee                          |
|   |                                      |   |
|   |                                      |   |
|   |                                      |   |
|   | By:                                       |   |
|   | Authorized Signatory                      |

 

B-4

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**ANNEX1 TO EXHIBIT B**

 

Registered Owner and address:

 

PACCT, LLC

c/o Providian Financial Corporation

201 Mission Street

San Francisco, California 94105

 

Tax Identification Number: 71-0891098

 

B-1

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**EXHIBIT C**

** **

**FORM OF**

**CERTIFICATEOF TRUST OF**

**CSGQTRUST**

 

This Certificate of Trust of CSGQ Trust (the “**Trust**”) is being dulyexecuted and filed by the undersigned, as trustee, to form a business trustunder the Delaware Business Trust Act (12 Del. C. § 3801 etseq.)(the “**Act**”).

 

1.       Name.  The name of the business trust createdhereby is CSGQ Trust.

 

2.       DelawareTrustee.  The name and businessaddress of the trustee of the Trust having its principal place of business in theState of Delaware are Wilmington Trust Company, Rodney Square North, 1100 NorthMarket Street, Wilmington, Delaware 19890-0001, Attention: Corporate TrustAdministration.

 

IN WITNESS WHEREOF, the undersigned has executed this Certificate ofTrust in accordance with Section 3811(a)(1) of the Act.

 

 
|   | WILMINGTON TRUST COMPANY,  not in its individual capacity but  solely as owner trustee of the Trust  Agreement |
|--------|----------------------------------------------------------------------------------------------------------------|
|   |                                                                                                           |   |
|   |                                                                                                           |   |
|   |                                                                                                           |   |
|   |                                                                                                           |   |
|   | By:                                                                                                            |   |
|   |                                                                                                           | Name: |
|   |                                                                                                           | Title: |

 

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