EXECUTION COPY BA CREDIT CARD TRUST FOURTH AMENDED AND RESTATED TRUST AGREEMENT dated as of October 1, 2014 between BA CREDIT CARD FUNDING, LLC, as Beneficiary and as Transferor, and WILMINGTON TRUST COMPANY, as Owner Trustee 3650474.03.00.docx
TABLE OF CONTENTS - i - Page ARTICLE I DEFINITIONS... 2 Section 1.01. Definitions... 2 Section 1.02. Generic Terms... 6 ARTICLE II ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE; COLLATERAL CERTIFICATE... 6 Section 2.01. Continuation of Trust; Name... 6 Section 2.02. Transfer of Property to Trust; Initial Capital Contribution of Trust Estate... 6 Section 2.03. Purposes and Powers; Trust to Operate as a Single Purpose Entity... 6 Section 2.04. Appointment of Owner Trustee... 9 Section 2.05. Declaration of Trust... 9 Section 2.06. Title to Trust Estate... 10 Section 2.07. Nature of Interest in the Trust Estate... 10 Section 2.08. Continuation of Trust; Principal Office of Owner Trustee... 10 Section 2.09. Tax Matters... 10 Section 2.10. Fiscal Year... 10 Section 2.11. Transfer of Collateral Certificate... 10 Section 2.12. Closing... 12 Section 2.13. Books and Records... 12 Section 2.14. Series 2001-D Certificateholder... 12 Section 2.15. Representations and Warranties of the Transferor... 12 Section 2.16. Protection of Title to Collateral Certificate... 14 Section 2.17. Assignment to Indenture Trustee... 14 Section 2.18. Merger or Consolidation of, or Assumption of the Obligations of, Transferor... 15 Section 2.19. Limitation on Liability of Transferor and Others... 15 ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY... 16 Section 3.01. Representations and Warranties of the Beneficiary... 16 ARTICLE IV DISTRIBUTIONS OF FUNDS... 17 Section 4.01. Distribution of Funds... 17 Section 4.02. Payments from Trust Estate Only... 17 Section 4.03. Method of Payment... 17 Section 4.04. Establishment of Account... 17 ARTICLE V DUTIES OF THE OWNER TRUSTEE... 18
Section 5.01. Action upon Instructions... 18 Section 5.02. No Duty to Act under Certain Circumstances... 19 Section 5.03. No Duties Except under Specified Agreements or Instructions... 19 Section 5.04. Trust Operation... 20 Section 5.05. Execution of Documents... 20 Section 5.06. Nonpetition Covenants... 20 ARTICLE VI CONCERNING THE TRUSTEE BANK... 21 Section 6.01. Acceptance of Trust and Duties... 21 Section 6.02. Furnishing of Documents... 22 Section 6.03. Representations and Warranties as to the Trust Estate... 22 Section 6.04. Signature of Returns... 23 Section 6.05. Reliance; Advice of Counsel... 23 Section 6.06. Not Acting in Individual Capacity... 23 Section 6.07. Representations and Warranties... 23 ARTICLE VII TERMINATION OF TRUST AGREEMENT... 24 Section 7.01. Termination of Trust Agreement... 24 ARTICLE VIII SUCCESSOR OWNER TRUSTEES, CO-TRUSTEE AND SEPARATE OWNER TRUSTEE... 24 Section 8.01. Resignation and Removal of the Owner Trustee; Appointment of Successors... 24 Section 8.02. Transfer Procedures... 25 Section 8.03. Qualification of Owner Trustee... 25 Section 8.04. Co-trustees and Separate Owner Trustees... 25 ARTICLE IX AMENDMENTS... 26 Section 9.01. Amendments... 26 ARTICLE X OWNERSHIP INTERESTS AND CERTIFICATES... 27 Section 10.01. Issuance of Trust Certificates... 27 Section 10.02. Beneficial Interest; Prohibitions on Transfer... 28 Section 10.03. Lost or Destroyed Trust Certificate... 29 ARTICLE XI COMPENSATION OF TRUSTEE BANK AND INDEMNIFICATION... 29 Section 11.01. Trustee Bank Fees and Expenses... 29 Section 11.02. Indemnification... 29 ARTICLE XII MISCELLANEOUS... 30 Section 12.01. Conveyance by the Owner Trustee Is Binding... 30
Section 12.02. Instructions; Notices... 31 Section 12.03. Severability... 32 Section 12.04. Limitation of Liability... 32 Section 12.05. Separate Counterparts... 32 Section 12.06. Successors and Assigns... 32 Section 12.07. Headings... 32 Section 12.08. Governing Law... 32 Section 12.09. No Recourse... 32 Section 12.10. Acceptance of Terms of Agreement... 33 Section 12.11. Intention of Parties... 33 Section 12.12. Clarifying Items Relating to Prior Trust Agreements... 33 ARTICLE XIII COMPLIANCE WITH REGULATION AB... 34 Section 13.01. Intent of the Parties; Reasonableness... 34 Section 13.02. Information to Be Provided by the Trustee Bank... 34
EXHIBITS Page EXHIBIT A [FORM OF] TRUST CERTIFICATE...A-1
THIS BA CREDIT CARD TRUST FOURTH AMENDED AND RESTATED TRUST AGREEMENT, between BA CREDIT CARD FUNDING, LLC, a Delaware limited liability company ( Funding ), as Beneficiary and as Transferor, and WILMINGTON TRUST COMPANY, a Delaware corporation with trust powers, as owner trustee (the Owner Trustee ), is made and entered into as of October 1, 2014, and is acknowledged and accepted by the Trust (as hereinafter defined) and BANA (as hereinafter defined). WHEREAS, MBNA America Bank, National Association ( MBNA ) (as predecessor to FIA Card Services, National Association) and the Owner Trustee have heretofore created a statutory trust pursuant to the Delaware Statutory Trust Act (as hereinafter defined) by filing the Certificate of Trust (as hereinafter defined) with the office of the Secretary of State (as hereinafter defined) on May 4, 2001, and entering into a Trust Agreement, dated as of May 4, 2001 (as amended prior to May 24, 2001, the Original Trust Agreement ); WHEREAS, MBNA and the Owner Trustee have heretofore entered into an Amended and Restated Trust Agreement, dated as of May 24, 2001 (as amended prior to June 10, 2006, the First Amended and Restated Trust Agreement ), which amended and restated the Original Trust Agreement; WHEREAS, MBNA changed its name from MBNA America Bank, National Association to FIA Card Services, National Association ( FIA ), effective as of June 10, 2006, and FIA and the Owner Trustee have heretofore entered into a Second Amended and Restated Trust Agreement, dated as of June 10, 2006 (as amended prior to October 20, 2006, the Second Amended and Restated Trust Agreement ), which amended and restated the First Amended and Restated Trust Agreement; WHEREAS, FIA, as Beneficiary and Transferor under the Second Amended and Restated Trust Agreement, determined to substitute BA Credit Card Funding, LLC, a Delaware limited liability company and affiliate of FIA, in the place of FIA as the Beneficiary and Transferor under the Second Amended and Restated Trust Agreement, and, to give effect to such substitution, FIA and the Owner Trustee have heretofore entered into a Third Amended and Restated Trust Agreement, dated as of October 20, 2006 (as amended prior to October 1, 2014, the Third Amended and Restated Trust Agreement and, together with the Second Amended and Restated Trust Agreement, the First Amended and Restated Trust Agreement and the Original Trust Agreement, the Prior Trust Agreements ); WHEREAS, as of the date hereof, FIA has merged (the Merger ) with and into Bank of America, National Association, a national banking association ( BANA ), with BANA being the surviving entity of the Merger; and WHEREAS, Funding and the Owner Trustee desire to (a) continue the Trust (as hereinafter defined) as a statutory trust under the Delaware Statutory Trust Act and (b) amend and restate the Third Amended and Restated Trust Agreement in its entirety to memorialize the Merger and to clarify certain language in the Third Amended and Restated Trust Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. Capitalized terms used herein and not defined herein have the meaning assigned to them in the Series 2001-D Supplement or the Pooling and Servicing Agreement. For purposes of this Agreement, the following terms have the following meanings: Agreement means this BA Credit Card Trust Fourth Amended and Restated Trust Agreement, as the same may be amended, modified or supplemented from time to time. BANA means Bank of America, National Association (successor by merger to FIA), a national banking association, and its successors and any entity resulting from or surviving any consolidation or merger to which it or its successors may be a party. Beneficiary means Funding, as beneficial owner of the Trust, and each Permitted Affiliate Transferee and other transferee under Section 10.02. Beneficiary Trust Account means the account established by the Owner Trustee on behalf of the Trust in accordance with Section 4.04. Certificate of Trust shall mean the Amended and Restated Certificate of Trust filed on behalf of the Trust with the Secretary of State on June 10, 2006, and any and all amendments thereto and restatements thereof filed on behalf of the Trust with the Secretary of State. time. Code means the Internal Revenue Code of 1986, as it may be amended from time to Collateral Certificate means the Series 2001-D Certificate issued pursuant to the Pooling and Servicing Agreement and the Series 2001-D Supplement, as amended, supplemented, restated or otherwise modified from time to time. Commission is defined in Section 13.01. Delaware Statutory Trust Act means the Delaware Statutory Trust Act, 12 Del.C. 3801, et seq., as amended from time to time, and any successor statute thereto. Deliveries is defined in Section 12.02. Disqualification Event with respect to the Owner Trustee means (a) the bankruptcy, insolvency or dissolution of the Owner Trustee, (b) the occurrence of the date of resignation of the Owner Trustee, as set forth in a notice of resignation given pursuant to Section 8.01, or - 2 -
(c) the delivery to the Owner Trustee of the instrument or instruments of removal referred to in Section 8.01 (or, if such instruments specify a later effective date of removal, the occurrence of such later date), or (d) failure of the Owner Trustee to qualify under the requirements of Section 8.03. Exchange Act means the Securities Exchange Act of 1934, as amended. FIA means FIA Card Services, National Association, a national banking association, and its successors and any corporation resulting from or surviving any consolidation or merger to which it or its successors may be a party. First Amended and Restated Trust Agreement is defined in the third paragraph of this Agreement. Funding means BA Credit Card Funding, LLC, a Delaware limited liability company, and its successors and any entity resulting from or surviving any consolidation or merger to which it or its successors may be a party. Governmental Authority means the United States of America, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. Indemnified Person is defined in Section 11.02. Indenture means the Third Amended and Restated Indenture between the Trust and the Indenture Trustee, which by its terms is identified as being the Indenture referred to herein, as amended, restated, supplemented or otherwise modified from time to time. Indenture Collateral is defined in Section 2.11(b). Indenture Trustee means The Bank of New York Mellon as trustee under the Indenture, and each successor trustee under the Indenture. Master Trust means BA Master Credit Card Trust II (formerly known as MBNA Master Credit Card Trust II). Master Trust Trustee means The Bank of New York Mellon as trustee under the Pooling and Servicing Agreement and each successor trustee under the Pooling and Servicing Agreement. Note is defined in the Indenture. Noteholder is defined in the Indenture. Note Rating Agency is defined in the Indenture. - 3 -
Original Conveyance is defined in Section 2.11(a). Original Trust Agreement is defined in the second paragraph of this Agreement. Owner Trustee means Wilmington Trust Company, a Delaware corporation with trust powers, not in its individual capacity but solely in its capacity as owner trustee hereunder, and each successor trustee under Article VIII, in its capacity as owner trustee hereunder, and each co-trustee under and to the extent provided in Section 8.04, in its capacity as owner trustee hereunder. Ownership Interest means the Ownership Interest issued by the Trust hereunder with the rights and privileges set forth in Section 10.01. Person means any individual, corporation, partnership (general or limited), limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or other person or entity. Periodic Filing means any filing or submission that the Trust is required to make with any federal, state or local authority or regulatory agency. Permitted Affiliate Transferee is defined in Section 10.02. Pooling and Servicing Agreement means the Third Amended and Restated Pooling and Servicing Agreement, dated as of October 1, 2014, among Funding, as Transferor, BANA, as Servicer, and The Bank of New York Mellon, as trustee, as amended, restated, supplemented or otherwise modified from time to time, including as supplemented by the Series 2001-D Supplement. Predecessor Collateral Certificate means the Series 2001-D Certificate, dated June 10, 2006, identified as No. 3, that (i) previously represented the interest in the Master Trust that is currently represented by the Collateral Certificate, and (ii) was issued in the name of the Trust, exchanged in connection with the Merger and cancelled immediately prior to the issuance of the Collateral Certificate. Prior Trust Agreements is defined in the fifth paragraph of this Agreement. Prior Trust Certificate is defined in Section 10.01(a). Regulation AB means Subpart 229.1100 Asset Backed Securities (Regulation AB), 17 C.F.R. 229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time. - 4 -
Requirements of Law shall mean, for any Person, the certificate of incorporation or articles of association and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or determination of an arbitrator or Governmental Authority, in each case applicable to or binding upon such Person or to which such Person is subject, whether federal, state or local (including without limitation, usury laws, the Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System). Second Amended and Restated Trust Agreement is defined in the fourth paragraph of this Agreement. Secretary of State means the Office of the Secretary of State of each applicable state. Securities Act means the Securities Act of 1933, as amended. Securitization Transaction means any transaction involving a new issuance of notes pursuant to the Indenture, whether publicly offered or privately placed, rated or unrated. Series 2001-D Supplement means the Fourth Amended and Restated Series 2001-D Supplement, relating to the Pooling and Servicing Agreement, which by its terms is identified as being the Series 2001-D Supplement referred to herein, as amended, restated, supplemented or otherwise modified from time to time. Third Amended and Restated Trust Agreement is defined in the fifth paragraph of this Agreement. Transaction Documents mean the Indenture, any Indenture Supplement (as defined in the Indenture) thereto, any terms document (as defined in the Indenture), the Trust Certificate, the Certificate of Trust and other documents delivered in connection herewith and therewith, each as amended, restated, supplemented or otherwise modified from time to time. Transferor means Funding and its successors and assigns. Transferor Interest is defined in the Pooling and Servicing Agreement. Trust means BA Credit Card Trust, the statutory trust heretofore formed and continued under and pursuant to the Delaware Statutory Trust Act and this Agreement. Trust Certificate is defined in Section 10.01. Trust Collateral is defined in Section 2.11(d). Trust Estate is defined in Section 2.05. Trustee Bank means Wilmington Trust Company in its individual capacity, each bank appointed as successor Owner Trustee under Article VIII in its individual capacity and each bank - 5 -
appointed as co-trustee under and to the extent provided in Section 8.04 in its individual capacity. UCC means the Uniform Commercial Code as in effect in the applicable jurisdiction. Section 1.02. Generic Terms. (a) The terms hereby, hereof, hereto, herein, hereunder and any similar terms will refer to this Agreement. (b) Unless otherwise indicated in context, the terms Section, Exhibit or Schedule will refer to a Section of, or an Exhibit or Schedule to, this Agreement. (c) Words of the masculine, feminine or neuter gender mean and include the correlative words of other genders, and words importing the singular number mean and include the plural number and vice versa. (d) The terms include, including and similar terms will be construed as if followed by the phrase without limitation. (e) All terms defined in this Agreement will have the defined meanings when used in any certificate or other document made or delivered pursuant hereto or in connection herewith unless otherwise defined therein. (f) Any agreement, instrument or statute defined or referred to herein or in any certificate or other document made or delivered pursuant hereto or in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; references to a Person are also to its permitted successors and assigns. ARTICLE II ORGANIZATION; DECLARATION OF TRUST BY THE OWNER TRUSTEE; COLLATERAL CERTIFICATE Section 2.01. Continuation of Trust; Name. The Trust heretofore created and continued hereby was formerly named MBNA Credit Card Master Note Trust, and was renamed BA Credit Card Trust effective as of June 10, 2006, under which name the Owner Trustee or the Beneficiary may conduct any activities and business of the Trust contemplated hereby, execute contracts and other instruments on behalf of the Trust and sue and be sued on behalf of the Trust. Section 2.02. Transfer of Property to Trust; Initial Capital Contribution of Trust Estate. FIA, as the initial beneficiary of the Trust, has sold, assigned, granted and transferred over to the Owner Trustee, as of the date of the Original Trust Agreement, $1.00. The Owner Trustee hereby acknowledges receipt in trust, as of the date of the Original Trust Agreement, of the foregoing contribution, which constituted the initial Trust Estate. Section 2.03. Purposes and Powers; Trust to Operate as a Single Purpose Entity. (a) The purpose of the Trust is to engage solely in a program of acquiring interests in the Master Trust - 6 -
and issuing Notes under the Indenture and related activities. Without limiting the generality of the foregoing, the Trust may and shall have the power and authority to: (i) acquire the Collateral Certificate, and other certificates of beneficial interest, of the Master Trust; (ii) from time to time, grant a security interest in the Collateral Certificate or other beneficial interests in the Master Trust, including the pledge of any portion of the Investor Interest of the Collateral Certificate, and grant a security interest in accounts established for the benefit of indebtedness of the Trust under the Indenture; (iii) from time to time authorize and approve the issuance of Notes pursuant to the Indenture without limitation to aggregate amounts and, in connection therewith, determine the terms and provisions of such Notes and of the issuance and sale thereof, including the following: Trust; (A) (B) (C) (D) (E) determining the principal amount of the Notes; determining the maturity date of the Notes; determining the rate of interest, if any, to be paid on the Notes; determining the price or prices at which such Notes will be sold by the determining the provisions, if any, for the redemption of such Notes; (F) determining the form, terms and provisions of the indentures, fiscal agency agreements or other instruments under which the Notes may be issued and the banks or trust companies to act as trustees, fiscal agents and paying agents thereunder; (G) preparing and filing all documents necessary or appropriate in connection with the registration of the Notes under the Securities Act of 1933, as amended, the qualification of indentures under the Trust Indenture Act of 1939, as amended, and the qualification under any other applicable federal, foreign, state, local or other governmental requirements; (H) preparing any prospectus, offering memorandum, private placement memorandum or other descriptive material relating to the issuance of the Notes; exchange; (I) listing the Notes on any United States or non-united States securities (J) entering into one or more interest rate or currency swaps, caps, collars, guaranteed investment contracts or other derivative agreements with counterparties to manage interest rate or currency risk relating to the Notes; - 7 -
Notes; and (K) appointing a paying agent or agents for purposes of payments on the (L) arranging for the underwriting, subscription, purchase or placement of the Notes and selecting underwriters, managers, dealers and purchasers or agents for that purpose; (iv) from time to time receive payments and proceeds with respect to the Collateral Certificate and other certificates of beneficial interest in the Master Trust and the Indenture and either invest or distribute those payments and proceeds; (v) from time to time make deposits to and withdrawals from accounts established under the Indenture; (vi) (vii) from time to time make and receive payments pursuant to derivative agreements; from time to time make payments on the Notes; (viii) from time to time acquire additional collateral from Funding or any special purpose vehicle established by Funding; (ix) from time to time perform such obligations and exercise and enforce such rights and pursue such remedies as may be appropriate by virtue of the Trust being party to any of the agreements contemplated in clauses (i) through (viii) above; and (x) subject to compliance with the Transaction Documents, to engage in such other activities as may be required or convenient in connection with conservation of the Trust Estate and the making of payments to the Noteholders and distributions to the Transferor, which activities shall not be contrary to the status of the Trust as a qualified special purpose entity. In connection with any of the foregoing, the Trust may (x) execute and deliver, and/or accept, such instruments, agreements, certificates, Uniform Commercial Code financing statements and other documents, and create such security interests, as may be necessary or desirable in connection therewith, and (y) subject to the terms of this Agreement, take such other action as may be necessary or incidental to the foregoing. (b) Each of the Beneficiary, on behalf of the Trust, and the Owner Trustee, at the written direction of the Beneficiary and on behalf of the Trust, is hereby authorized and shall have the power to execute and deliver from time to time loan agreements, underwriting agreements, terms agreements, selling agent agreements, purchase agreements, private placement agreements, dealer agreements, swap and other derivative agreements, including performance agreements, indentures, indenture supplements, terms documents, notes, security agreements, and other agreements and instruments as are consistent with the purposes of the Trust, and in each case, any amendments, restatements, supplements, or modifications thereto. Without limiting the generality of the foregoing, each of the Beneficiary, on behalf of the Trust, and the Owner Trustee, at the written direction of the Beneficiary and on behalf of the Trust, is specifically authorized to execute and deliver without any further act, vote or approval, and - 8 -
notwithstanding any other provision of this Agreement, the Delaware Statutory Trust Act or other applicable law, rule or regulation, agreements, documents or securities relating to the purposes of the Trust including: (i) the Indenture); (ii) the Transaction Documents and each Issuer Certificate (each as defined in the Notes; (iii) each interest rate or currency swap, cap, collar, guaranteed investment contract or other derivative agreement, including agreements related thereto, between the Trust and a counterparty to manage interest rate or currency risk relating to the Notes; and (iv) any other document necessary or desirable in connection with the fulfillment of the purposes of the Trust described in, and pursuant to, Section 2.03(a). The authorization set forth in the preceding sentence will not be deemed a restriction on the power and authority of the Beneficiary and the Owner Trustee, on behalf of the Trust, to execute and deliver other agreements, documents instruments and securities or to take other actions on behalf of the Trust in connection with the fulfillment of the purposes of the Trust described in, and pursuant to, Section 2.03(a). (c) Each of the Beneficiary, on behalf of the Trust, and the Owner Trustee, at the written direction of the Beneficiary and on behalf of the Trust, is hereby authorized and shall have the power to execute and file any Periodic Filings on behalf of the Trust. (d) Either the Owner Trustee or the Beneficiary will at all times maintain the books, records and accounts of the Trust separate and apart from those of any other Person, and will cause the Trust to hold itself out as being a Person separate and apart from any other Person. (e) The Trust will not engage in any business or own any assets unrelated to the purposes of the Trust. Section 2.04. Appointment of Owner Trustee. The Beneficiary hereby confirms and ratifies the appointment of Wilmington Trust Company as Owner Trustee of the Trust effective as of the date of the Original Trust Agreement, to have all the rights, powers and duties set forth herein and in the Delaware Statutory Trust Act. Section 2.05. Declaration of Trust. The Owner Trustee hereby declares that it will hold the initial Trust Estate, the Collateral Certificate and the other documents and assets described in Section 2.03, together with any payments, proceeds or income of any kind from such documents or assets or any other source and any other property held under this Agreement (collectively, the Trust Estate ), upon the trust set forth herein and for the sole use and benefit of the Beneficiary. It is the intention of the parties hereto that the Trust constitute a statutory trust under the Delaware Statutory Trust Act and that this Agreement constitute the governing instrument of such statutory trust. The parties hereto agree that they will take no action contrary to the - 9 -
foregoing intention. Effective as of the date of the Original Trust Agreement, the Owner Trustee shall have all rights, powers and duties set forth herein and, to the extent not inconsistent herewith, in the Delaware Statutory Trust Act with respect to accomplishing the purposes of the Trust. Section 2.06. Title to Trust Estate. Title to all of the Trust Estate will be vested in the Trust as a separate legal entity until this Agreement terminates pursuant to Article VII; provided, however, that if the laws of any jurisdiction require that title to any part of the Trust Estate be vested in the trustees of a trust, then title to that part of the Trust Estate will be deemed to be vested in the Owner Trustee or any co-trustee or separate trustee, as the case may be, appointed pursuant to Article VIII. Section 2.07. Nature of Interest in the Trust Estate. The Beneficiary will not have any legal title to or right to possession of any part of the Trust Estate. Section 2.08. Continuation of Trust; Principal Office of Owner Trustee. The Owner Trustee has filed a certificate of trust relating to the Trust with the Secretary of State and will maintain the Owner Trustee s principal office in the State of Delaware. However, nothing herein shall restrict or prohibit the Owner Trustee from having employees within or without the State of Delaware. Payments will be received by the Trust only in Delaware or New York, and payments will be made by the Trust only from Delaware or New York. The Trust will be located and administered in the State of Delaware. Section 2.09. Tax Matters. The parties hereto intend that, for income and franchise tax purposes, the Trust will be treated as a security device and disregarded as an entity and its assets shall be treated as owned in whole by the Beneficiary, and the parties hereto will file all their tax returns in a manner consistent with that intent unless otherwise required by a taxing authority. Except as otherwise expressly provided herein, any tax elections required or permitted to be made by the Trust under the Code or otherwise will be made by the Beneficiary. The Trust will not elect to be treated as a corporation for any tax purpose. Section 2.10. each year. Section 2.11. Fiscal Year. The fiscal year of the Trust will end on the last day of June of Transfer of Collateral Certificate. (a) FIA, as the initial transferor, transferred, assigned, set over, pledged and otherwise conveyed to the Trust, without recourse (subject to the obligations in the First Amended and Restated Trust Agreement, and as of the date hereof, subject to the obligations herein), all right, title and interest of FIA in and to the Predecessor Collateral Certificate and the proceeds thereof (the Original Conveyance ). The Original Conveyance of the Predecessor Collateral Certificate and the proceeds thereof was and still is intended to constitute a sale, and not a secured borrowing, for accounting purposes. Nevertheless, FIA, as the initial transferor, also granted to the Trust a security interest, which security interest is continuing, in and to all of FIA s right, title and interest, whether then owned or thereafter acquired, in, to and under the Predecessor Collateral Certificate, all accounts, general intangibles, chattel paper, instruments, documents, - 10 -
money, deposit accounts, certificates of deposit, goods, letters of credit, letter of credit rights, advices of credit and investment property consisting of, arising from, or relating to the Predecessor Collateral Certificate, and the proceeds thereof, to secure the obligations of FIA as the initial transferor. (b) To the extent that BANA, as successor by merger to FIA, retained any interest in the Predecessor Collateral Certificate, BANA, as successor by merger to FIA, as the initial transferor, hereby grants to the Indenture Trustee for the benefit of the holders of the Notes a security interest in and to all of BANA s right, title, and interest, whether then owned or thereafter acquired, in, to, and under the Predecessor Collateral Certificate and the Collateral Certificate, all accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, letter-of-credit rights, advices of credit, and investment property consisting of, arising from, or relating to the Predecessor Collateral Certificate and the Collateral Certificate, and the proceeds thereof (collectively, the Indenture Collateral ), to secure performance of BANA as successor by merger to FIA, as the initial transferor. (c) Immediately following the Merger and on the date hereof (i) the Predecessor Collateral Certificate was exchanged by the Trust so that it could be cancelled and replaced with a certificate described in clause (ii) that memorialized the Merger and clarified and updated references therein to account for the Merger, and (ii) the Collateral Certificate was issued in the name of the Trust as a replacement for the Predecessor Collateral Certificate pursuant to the Series 2001-D Supplement. The parties agree, acknowledge and confirm that (A) the Original Conveyance has taken place, (B) as a result of the Merger, BANA became obligated for all of FIA s obligations in connection with the Original Conveyance and (C) the issuance of the Collateral Certificate as a replacement for the Predecessor Collateral Certificate is not intended to modify any of BANA s obligations with respect thereto. (d) The parties intend and agree that, since the transfers by FIA pursuant to the Original Trust Agreement, all right, title, and interest in, to, and under the Collateral Certificate, all other items of the Trust Estate, and all proceeds thereof have been owned solely by the Trust, subject only to the security interest of the Indenture Trustee under the Indenture. If the Transferor or BANA were determined to have any right, title, or interest in, to, or under the Collateral Certificate, any other item of the Trust Estate, or any proceeds thereof despite this intent of the parties, each of the Transferor and BANA hereby transfers and assigns to the Trust, without recourse, all of its right, title, and interest in, to, and under the Collateral Certificate, all other items of the Trust Estate, and all proceeds thereof and further grants to the Trust a security interest in all of the its right, title, and interest, whether now owned or hereafter acquired, in, to, and under the Collateral Certificate, all other items of the Trust Estate, and all proceeds thereof (collectively, the Trust Collateral ) to secure its obligations under this Agreement. The parties intend that these transfers by the Transferor constitute a sale, and not a secured borrowing, for accounting purposes. These transfers by the Transferor and BANA are a protective measure and must not be construed as evidence of any intent contrary to the one expressed in the first sentence of this paragraph. - 11 -
Section 2.12. Closing. The transfer, assignment, set-over, pledge and conveyance of the Predecessor Collateral Certificate by FIA, as the initial transferor, and the initial issuance of Notes took place at the offices of Orrick, Herrington & Sutcliffe LLP, 666 Fifth Avenue, New York, New York 10103 on the Closing Date (as defined in the Series 2001-D Supplement). Section 2.13. Books and Records. The parties acknowledge and confirm that the Collateral Certificate has been registered in the name of the Trust and has been delivered to the Trust in the State of Delaware. In addition, the Transferor agrees to record and file, at its own expense, any financing statements (and amendments of financing statements and continuation statements with respect to such financing statements when applicable) required to be filed with respect to the transfers by the Transferor hereunder, meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary under the applicable UCC to perfect those transfers to the Trust, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Trust promptly after filing. Section 2.14. Series 2001-D Certificateholder. The Indenture Trustee shall be the Series 2001-D Certificateholder for all purposes under the Pooling and Servicing Agreement and the Series 2001-D Supplement. To the extent the Collateral Certificate is sold or otherwise transferred to a third-party in connection with the sale or liquidation of the Trust Estate pursuant to the provisions of the Indenture, such transferee shall be the Series 2001-D Certificateholder for all purposes under the Pooling and Servicing Agreement. Section 2.15. Representations and Warranties of the Transferor. The Transferor makes the following representations and warranties as to the Collateral Certificate on which the Trust is deemed to have relied. Such representations and warranties speak as of the execution and delivery of this Agreement by the Transferor and as of each Transfer Date after October 1, 2014. (a) Title. The transfers and assignments described in Section 2.11 constitute either (i) a sale of the Collateral Certificate, (ii) a grant of a perfected security interest therein to the Trust or (iii) a grant of a perfected security interest therein to the Indenture Trustee. The Collateral Certificate has not been sold, transferred, assigned or pledged by the Transferor to any Person other than pursuant to this Agreement (including any predecessor agreement to this Agreement). Upon the transfers and assignments described in Section 2.11, the Trust shall have good and marketable title to the Collateral Certificate, free and clear of all liens or rights of others, or a first priority perfected security interest therein. The Transferor has no knowledge of any current statutory or other non-consensual liens to which the Collateral Certificate is subject. (b) All Actions Taken. All actions necessary under the applicable UCC in any jurisdiction to be taken (i) to give the Trust a first priority perfected security interest or ownership interest in the Collateral Certificate as against the Transferor and against BANA, and (ii) to give the Indenture Trustee a first priority perfected security interest in the Collateral Certificate as against the Trust (including, without limitation, UCC filings with the Secretary of State), in each case subject to any statutory or other non-consensual liens with respect to the Collateral Certificate, have been taken. - 12 -
(c) No Consents Required. All approvals, authorizations, consents, orders or other actions of any Person or of any Governmental Authority required in connection with the execution and delivery by the Transferor of this Agreement or any other Transaction Document, the performance by the Transferor of the transactions contemplated by this Agreement or any other Transaction Document and the fulfillment by the Transferor of the terms hereof or thereof, have been obtained or have been completed and are in full force and effect (other than approvals, authorizations, consents, orders and other actions which if not obtained or completed or in full force or effect would not have a material adverse effect on the Transferor or the Trust or upon the collectibility of the Collateral Certificate or upon the ability of the Transferor to perform its obligations under this Agreement). (d) Transfers Comply. Each of (i) the transfer of the Predecessor Collateral Certificate to the Trust described in Section 2.11, (ii) the pledge of the Predecessor Collateral Certificate by the Trust to the Indenture Trustee pursuant to the terms of the Indenture and (iii) the pledge of the Collateral Certificate to the Indenture Trustee described in Section 2.11, comply with the provisions of the Pooling and Servicing Agreement relating to transfers of the Collateral Certificate. (e) To the extent the UCC applies, this Agreement creates a valid and continuing security interest (as defined in the UCC) in favor of the Trust in the Collateral Certificate, which security interest is prior to all other liens, and is enforceable as such as against creditors of and purchasers from the Transferor. (f) The Collateral Certificate constitutes either an account, a general intangible, an instrument, or a certificated security, each within the meaning of the UCC. (g) [Reserved.] (h) The Transferor has caused or will have caused, within ten days of its execution of this Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral Certificate granted by the Transferor to the Trust pursuant to this Agreement. (i) Other than the interests transferred and assigned to the Trust and the Indenture Trustee described in Section 2.11, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed the Collateral Certificate. The Transferor has not authorized the filing of and is not aware of any financing statements against the Transferor that include a description of the Collateral Certificate other than any financing statement relating to the transfers described in Section 2.11 or any financing statement that has been terminated. The Transferor is not aware of any judgment or tax lien filings against the Transferor. (j) Prior to the transfer of the Collateral Certificate to the Indenture Trustee, all original executed copies of the Collateral Certificate had been delivered to the Trust. (k) At the time of the transfer and assignment of the Collateral Certificate by the Transferor to the Trust pursuant to this Agreement, the Collateral Certificate had no marks or - 13 -
notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Trust and the Indenture Trustee. (l) None of the representations and warranties contained in subsections 2.15(e) through 2.15(k) shall be waived by any of the parties to this Agreement unless the Transferor has obtained written confirmation from each Note Rating Agency (as defined in the Indenture) that there will be no Ratings Effect (as defined in the Indenture) with respect to such waiver. Section 2.16. Protection of Title to Collateral Certificate. (a) The Transferor shall take all actions necessary, and the Trust shall cooperate with the Transferor, if applicable, to perfect, and maintain perfection of, the interests of the Trust in the Collateral Certificate. The Transferor shall execute and file and cause to be executed and filed such financing statements, amendments of financing statements, and continuation statements, all in such manner and in such places as may be required by law fully to perfect, maintain, and protect the interest of the Trust in the Collateral Certificate and in the proceeds thereof and the interest of the Indenture Trustee in the Collateral Certificate and the proceeds thereof. The Transferor shall deliver (or cause to be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. (b) The Transferor shall not change its name, identity or corporate structure in any manner that would, could or might make any financing statement, amendment of financing statement, or continuation statement filed in accordance with paragraph (a) above or otherwise seriously misleading within the meaning of the UCC (regardless of whether such a filing was ever made), unless it shall have given the Owner Trustee and the Indenture Trustee at least five days prior written notice thereof and, if applicable, shall have timely filed appropriate amendments to any and all previously filed financing statements, amendments of financing statements, or continuation statements (so that the interest of the Trust or the Indenture Trustee is not adversely affected). (c) The Transferor shall give the Owner Trustee and the Indenture Trustee at least 60 days prior written notice of any relocation of its chief executive office, place of business or State of location, and of any change in the jurisdiction of its organization, if, as a result of such relocation or change, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement (regardless of whether such a filing was ever made) and shall promptly, if applicable, file any such amendment. (d) The Owner Trustee shall permit the Indenture Trustee and its agents at any time following reasonable notice and during normal business hours to inspect, audit and make copies of and abstracts from the Owner Trustee s records regarding the Collateral Certificate. Section 2.17. Assignment to Indenture Trustee. The Transferor hereby acknowledges and consents to any mortgage, pledge, assignment and grant of a security interest by the Trust to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders of all right, title - 14 -
and interest of the Trust in, to and under the Collateral Certificate and the other property described in the Granting Clause of the Indenture and/or the assignment of any or all of the Trust s rights and obligations hereunder to the Indenture Trustee. Section 2.18. Merger or Consolidation of, or Assumption of the Obligations of, Transferor. Any Person (a) into which the Transferor may be merged or consolidated, (b) which may result from any merger or consolidation to which the Transferor shall be a party or (c) which may succeed to the properties and assets of the Transferor substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Transferor under this Agreement, shall be the successor to the Transferor hereunder without the execution or filing of any other document or any further act by any of the parties to this Agreement; provided, however, that (i) the Transferor shall have delivered to the Owner Trustee and the Indenture Trustee an Officers Certificate (as defined in the Indenture) of the Transferor and an Opinion of Counsel (as defined in the Indenture) each stating that such consolidation, merger or succession and such agreement of assumption comply with this Section 2.18 and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with, (ii) written confirmation from the Note Rating Agency (as defined in the Indenture) that such transaction will not result in any Note Rating Agency reducing or withdrawing its then existing rating of the Notes and (iii) the Transferor shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, all actions necessary to perfect the interests of the Trust and the Indenture Trustee have been taken, including that all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the interest of the Trust and Indenture Trustee, respectively, in the Collateral Certificate and reciting the details of such filings, or (B) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interests. Following the effectiveness of the succession provided for in this Section 2.18, the predecessor Transferor shall be released from any obligations and liabilities provided for under the Transaction Documents other than any obligations or liabilities incurred by such predecessor Transferor prior to the effectiveness of such succession. Section 2.19. Limitation on Liability of Transferor and Others. The Transferor and any director or officer or employee or agent of the Transferor may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Transferor, in its capacity as such, shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be incidental to its obligations under this Agreement, and that in its opinion may involve it in any expense or liability. The Beneficiary shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. - 15 -
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE BENEFICIARY Section 3.01. Representations and Warranties of the Beneficiary. The Beneficiary hereby represents and warrants to the Owner Trustee as of the date of this Agreement and as of the date of each increase in the Investor Interest of the Collateral Certificate after the date of this Agreement that: (a) The Beneficiary is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has full corporate power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted, and to execute, deliver and perform its obligations under this Agreement. (b) The Beneficiary is duly qualified to do business and is in good standing (or is exempt from such requirement) in any state required in order to conduct its business, and has obtained all necessary licenses and approvals with respect to the Beneficiary, in each jurisdiction in which failure to so qualify or to obtain such licenses and approvals would have a material adverse effect on the interests of the Noteholders hereunder or under the Indenture; provided, however, that no representation or warranty is made with respect to any qualifications, licenses or approvals which the Owner Trustee or the Indenture Trustee has or may be required at any time to obtain, if any, in connection with the transactions contemplated hereby or by any other Transaction Document to which the Owner Trustee or the Indenture Trustee, as the case may be, is a party. (c) The execution and delivery by the Beneficiary of this Agreement and the consummation by the Beneficiary of the transactions provided for in this Agreement and in the other Transaction Documents to which the Beneficiary is a party have been duly authorized by the Beneficiary by all necessary corporate action on its part and each of this Agreement and the other Transaction Documents to which the Beneficiary is a party will remain, from the time of its execution, an official record of the Beneficiary; the Beneficiary has the power and authority to assign the property to be assigned to and deposited with the Trust by the Beneficiary. (d) The execution and delivery by the Beneficiary of this Agreement, the performance by the Beneficiary of the transactions contemplated by this Agreement and the fulfillment by the Beneficiary of the terms hereof will not conflict with, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a material default under, any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which the Beneficiary is a party or by which it or any of its properties are bound (other than violations of such indentures, contracts, agreements, mortgages, deeds of trust or other instruments which, individually or in the aggregate, would not have a material adverse effect on the Beneficiary s ability to perform its obligation under this Agreement). (e) The execution and delivery by the Beneficiary of this Agreement, the performance by the Beneficiary of the transactions contemplated by this Agreement and the fulfillment by the - 16 -