Exhibit 4.10
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CHASE CREDIT CARD OWNER TRUST 2001-6
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
WILMINGTON TRUST COMPANY
as Owner Trustee
Dated as of December 17, 2001
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms.....................................1
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name.................................................3
SECTION 2.2. Office...............................................3
SECTION 2.3. Purposes and Powers..................................3
SECTION 2.4. Appointment of Owner Trustee.........................4
SECTION 2.5. Initial Capital Contribution of Trust Estate.........4
SECTION 2.6. Declaration of Trust.................................5
SECTION 2.7. Title to Owner Trust Property........................5
SECTION 2.8. Situs of Owner Trust.................................5
SECTION 2.9. Representations and Warranties of the Depositor......5
SECTION 2.10. Liability of Certificateholder.......................6
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership....................................6
SECTION 3.2. The Certificate......................................6
SECTION 3.3. Execution, Authentication and Delivery of
Certificates.........................................7
SECTION 3.4. Restrictions on Transfer.............................7
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate.....7
SECTION 3.6. Authenticating Agent.................................8
SECTION 3.7. Actions of Certificateholder.........................9
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to
Certain Matters.....................................9
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority...................................10
SECTION 5.2. General Duties......................................10
SECTION 5.3. Action upon Instruction.............................11
SECTION 5.4. No Duties Except as Specified in this Agreement or
in Instructions.....................................11
SECTION 5.5. No Action Except under Specified Documents or
Instructions........................................12
SECTION 5.6. Restrictions........................................12
SECTION 5.7. Doing Business in Other Jurisdictions...............12
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ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties.....................13
SECTION 6.2. Furnishing of Documents.............................14
SECTION 6.3. Representations and Warranties......................14
SECTION 6.4. Reliance; Advice of Counsel.........................15
SECTION 6.5. Not Acting in Individual Capacity...................16
SECTION 6.6. Owner Trustee May Own Notes.........................16
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses...................16
SECTION 7.2. Indemnification.....................................16
SECTION 7.3. Payments to Owner Trustee...........................17
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement......................17
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee..........18
SECTION 9.2. Resignation or Removal of Owner Trustee.............18
SECTION 9.3. Successor Owner Trustee.............................19
SECTION 9.4. Merger or Consolidation of Owner Trustee............19
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.......20
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments.........................21
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder..................................22
SECTION 10.3. Limitations on Rights of Others....................22
SECTION 10.4. Notices............................................22
SECTION 10.5. Severability.......................................23
SECTION 10.6. Separate Counterparts..............................23
SECTION 10.7. Successors and Assigns.............................23
SECTION 10.8. Nonpetition Covenants. ...........................23
SECTION 10.10. Headings...........................................23
SECTION 10.11. GOVERNING LAW......................................24
SECTION 10.12. Depositor Payment Obligation.......................24
SECTION 10.13. Acceptance of Terms of Agreement...................24
SECTION 10.14. Integration of Documents...........................24
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EXHIBITS
Exhibit A - Form of Certificate
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TRUST AGREEMENT dated as of December 17, 2001 between CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION ("Chase USA"), a national banking association having
its principal executive offices located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the depositor (in its capacity as the depositor,
the "Depositor") and WILMINGTON TRUST COMPANY, a Delaware banking corporation,
as the owner trustee (the "Owner Trustee").
ARTICLE I.
DEFINITIONS
SECTION 1.1. Capitalized Terms. (a) For all purposes of this Agreement,
the following terms shall have the meanings set forth below:
"Administrator" means Chase Manhattan Bank USA, National Association, or
any successor Administrator under the Deposit and Administration Agreement.
"Agreement" means this Chase Credit Card Owner Trust 2001-6 Trust
Agreement, as the same may be amended, modified or otherwise supplemented from
time to time.
"Basic Documents" means the Indenture, this Agreement, the Deposit and
Administration Agreement, the Note Underwriting Agreement and other documents
delivered in connection herewith and therewith.
"Certificate" means the certificate evidencing the beneficial interest of
the Certificateholder in the Owner Trust, substantially in the form attached
hereto as Exhibit A.
"Certificateholder" means Chase Manhattan Bank USA, National Association,
and its successors and permitted assigns.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; or such other address as
the Owner Trustee may designate by notice to the Depositor, or the principal
corporate trust office of any successor Owner Trustee (the address of which the
successor Owner Trustee will notify the Certificateholder and the Depositor).
"Deposit and Administration Agreement" means the Deposit and
Administration Agreement, dated as of December 17, 2001, between the Owner
Trustee, on behalf of the Owner Trust, and Chase Manhattan Bank USA, National
Association, as Depositor and as Administrator, as the same may be amended,
supplemented or otherwise modified from time to time.
"Depositor" means Chase Manhattan Bank USA, National Association, in its
capacity as Depositor hereunder and its successors and assigns in such capacity.
"Expenses" has the meaning assigned to such term in Section 7.2.
"Indemnified Parties" shall have the meaning assigned to such term in
Section 7.2.
"Indenture Trustee" means The Bank of New York, not in its individual
capacity but solely as Indenture Trustee under the Indenture, and any successor
Indenture Trustee under the Indenture.
"Owner Trust" means the trust created by this Agreement.
"Owner Trust Estate" means all right, title and interest of the Owner
Trustee in and to the property and rights assigned to the Owner Trustee pursuant
to Section 2.5 of this Agreement and Section 2.1 of the Deposit and
Administration Agreement, all monies, securities, instruments and other property
on deposit from time to time in the accounts established hereunder and all other
property of the Owner Trust from time to time, including any rights of the Owner
Trustee on behalf of the Owner Trust pursuant to the Deposit and Administration
Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee for the
Chase Credit Card Owner Trust 2001-6 under this Agreement (unless otherwise
specified herein), and any successor Owner Trustee hereunder.
"Requirements of Law" means, 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 regulations, 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).
"Secretary of State" means the Secretary of State of the State of Delaware.
"SFAS 140" means Statement of Financial Accounting Standards No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
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(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
(d) The words "hereof," "herein," "hereunder," and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and Exhibits
in or to this Agreement unless otherwise specified; and the term "including"
shall mean "including without limitation."
(e) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
ARTICLE II.
ORGANIZATION
SECTION 2.1. Name. The trust created hereby shall be referred to for
convenience as "Chase Credit Card Owner Trust 2001-6" (hereinafter, the "Owner
Trust"). The Owner Trust shall not be a "business trust" as defined in 12 Del.C.
3801.
SECTION 2.2. Office. The office of the Owner Trust shall be in care of
the Owner Trustee at the Corporate Trust Office or at such other address as the
Owner Trustee may designate by written notice to the Certificateholder and the
Depositor.
SECTION 2.3. Purposes and Powers. The purpose of the Owner Trust is,
and the Owner Trustee shall have the power and authority, on behalf of the Owner
Trust to engage in the following activities:
(a) to issue the Notes in the name of the Owner Trust pursuant to the
Indenture and the Certificate pursuant to this Agreement, and to sell, transfer
or exchange the Notes and the Certificate;
(b) to acquire the property and assets set forth in the Deposit and
Administration Agreement from the Depositor pursuant to the terms thereof, to
make payments or distribu-
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tions on the Notes and the Certificate and to make deposits to and withdrawals
from the Reserve Account and other accounts established under the Indenture;
(c) to assign, grant, transfer, pledge, mortgage and convey the Owner
Trust Estate to the Indenture Trustee pursuant to the Indenture and to hold,
manage and distribute to the Certificateholder pursuant to the terms of the
Deposit and Administration Agreement any portion of the Owner Trust Estate
released from the Lien of, and remitted to the Owner Trust pursuant to, the
Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(e) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or are
incidental thereto or connected therewith, which activities cannot be contrary
to the status of the Trust as a "qualifying special purpose entity" under SFAS
140 and any successor rule thereto; and
(f) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the Owner
Trust Estate and the making of distributions to the Certificateholder and the
Noteholders, which activities cannot be contrary to the status of the Trust as a
"qualifying special purpose entity" under SFAS 140 and any successor rule
thereto.
The Owner Trustee, on behalf of the Owner Trust, is hereby authorized to engage
in the foregoing activities. Neither the Owner Trustee, nor the Owner Trust,
shall engage in any activity other than in connection with the foregoing or
other than as required or authorized by the terms of this Agreement or the other
Basic Documents. For purposes of SFAS 140, the parties hereto intend that (a)
the Trust shall be treated as a "qualifying special purpose entity" as such term
is used in SFAS 140 and any successor rule thereto and (b) the power and
authority of the Owner Trust as stated this Section 2.3 shall be limited in
accordance with paragraph 35 of SFAS 140.
SECTION 2.4. Appointment of Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Owner Trust effective as of the
date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, $1.00. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate. The
Depositor shall pay the organizational expenses of the Owner Trust as they may
arise or shall, upon the request of the Owner Trustee, promptly reimburse the
Owner Trustee for any such expenses paid by the Owner Trustee.
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SECTION 2.6. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholder,
subject to the obligations of the Owner Trustee, on behalf of the Owner Trust,
under the Basic Documents. It is the intention of the parties hereto that the
Owner Trust constitute a common law trust duly formed in accordance with the
laws of the State of Delaware and that this Agreement constitutes the governing
instrument of such trust. It is the intention of the parties hereto that, solely
for United States income and franchise tax purposes, the Owner Trust shall be
treated as a division or branch of the Depositor. The parties agree that, unless
otherwise required by appropriate tax authorities, they will take no action
contrary to the foregoing intention. Effective as of the date hereof, the Owner
Trustee shall have all rights, powers and duties set forth herein with respect
to accomplishing the purposes of the Owner Trust.
SECTION 2.7. Title to Owner Trust Property. Legal title to all the
Owner Trust Estate shall be vested at all times in the Owner Trustee, on behalf
of the Owner Trust, except where applicable law in any jurisdiction requires
title to any part of the Owner Trust Estate to be vested in a co-trustee or a
separate trustee, in which case title to such part shall be deemed to be vested
in the co-trustee and/or separate trustee, as the case may be.
SECTION 2.8. Situs of Owner Trust. The Owner Trust will be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Owner Trust shall be located in the State of Delaware
or the State of New York. Payments will be received by the Owner Trust only in
Delaware or New York, and payments and distributions will be made by the Owner
Trust only from Delaware or New York. The only office of the Owner Trust will be
at the Corporate Trust Office of the Owner Trustee in Delaware.
SECTION 2.9. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The Depositor has been duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America, with power and authority to own its properties and to
conduct its business as such properties are currently owned and such
business is presently conducted.
(ii) The Depositor has the corporate power and authority to execute
and deliver this Agreement and to carry out its terms; the Depositor has
full power and authority to sell and assign the property to be sold and
assigned to and deposited with the Owner Trustee pursuant to this Agreement
and the Deposit and Administration Agreement, on behalf of the Owner Trust,
and the Depositor has duly authorized such sale and assignment and deposit
to the Owner Trustee, on behalf of the Owner Trust, by all necessary
5
action; and the execution, delivery and performance of this Agreement has
been duly authorized by the Depositor by all necessary action.
(iii) The consummation of the transactions contemplated by this
Agreement and the other Basic Documents and the fulfillment of the terms
hereof, do not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a
default under, the articles of association or bylaws of the Depositor, or
conflict with or breach any of the material terms or provisions of or
constitute (with or without notice or lapse of time) a default under any
indenture, agreement or other instrument to which the Depositor is a party
or by which it is bound; nor result in the creation or imposition of any
Lien upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument; nor violate any law or, to the
best of the Depositor's knowledge, any order, rule or regulation applicable
to the Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
(iv) There are no proceedings or investigations pending or, to the
best knowledge of the Depositor, threatened against the Depositor before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over the Depositor (i)
asserting the invalidity of any of the Basic Documents to which the
Depositor is a party, (ii) seeking to prevent the consummation of any of
the transactions contemplated by any of the Basic Documents, to which the
Depositor is a party, (iii) seeking any determination or ruling that, in
the reasonable judgment of the Depositor, would materially and adversely
affect the performance by the Depositor of its obligations under the Basic
Documents to which the Depositor is a party, or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of the Basic Documents to which the Depositor is
a party.
SECTION 2.10. Liability of Certificateholder. The Certificateholder
shall not have any personal liability for any liability or obligation of the
Owner Trustee or the Owner Trust.
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the Owner Trust
by the contribution by the Depositor pursuant to Section 2.5, the Depositor
shall be the sole beneficiary of the Owner Trust.
SECTION 3.2. The Certificate. (a) The Certificate shall be issued
substantially in the form of Exhibit A, which is incorporated by reference
herein. The Certificate shall be executed on behalf of the Owner Trust by manual
or facsimile signature of an Authorized Officer or other authorized signatory of
the Owner Trustee. A Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Owner Trust, shall be validly issued and
entitled to the benefit of this Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the authentication
and delivery of such Certificate or did not hold such offices at the date of
authentication and delivery of such Certificate. The Certificate shall not
entitle its Holder to any benefit under this Agreement, or be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee, or the Owner Trustee's authentication agent, by manual or
facsimile signature; such authentication shall constitute conclusive evidence
that such Certificate shall have been duly authenticated and delivered
hereunder. The Certificate shall be dated the date of its authentication.
(b) The Certificateholder shall be entitled to receive distributions
from the Owner Trust Estate only in accordance with this Agreement and the
Deposit and Administration Agreement. In no event shall the Depositor or the
Certificateholder be entitled to possession of, or be permitted to encumber any
part of, the Owner Trust Estate.
SECTION 3.3. Execution, Authentication and Delivery of Certificates.
Concurrently with the initial deposit of the Series Certificate with the Owner
Trustee, on behalf of the Owner Trust, pursuant to the Deposit and
Administration Agreement, the Owner Trustee shall cause the Certificate to be
executed on behalf of the Owner Trust, authenticated and delivered to or upon
the written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further action by the Depositor.
SECTION 3.4. Restrictions on Transfer. To the fullest extent permitted
by applicable law, the Certificate (or any interest therein) may not be sold,
transferred, assigned, participated, pledged or otherwise disposed of by the
Depositor to any Person.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificate. If (a)
the mutilated Certificate shall be surrendered to the Owner Trustee, or if the
Owner Trustee shall receive evidence to its satisfaction of the destruction,
loss or theft of the Certificate and (b) there shall be delivered to the Owner
Trustee such security or indemnity as may be required by it to save it harmless,
then the Owner Trustee shall execute and the Owner Trustee, or the Owner
Trustee's authenticating agent, shall authenticate and deliver, in exchange for
or in lieu of the mutilated, destroyed, lost or stolen Certificate, a new
Certificate. In connection with the issuance of any new Certificate under this
Section 3.5, the Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the Owner Trust, as
if originally issued, whether or not the
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lost, stolen or destroyed Certificate shall be found at any time. The
provisions of this Section 3.5 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of the
mutilated, destroyed, lost or stolen Certificate.
SECTION 3.6. Authenticating Agent. (a) The Owner Trustee may appoint
one or more authenticating agents with respect to the Certificate which shall be
authorized to act on behalf of the Owner Trustee in authenticating the
Certificate in connection with the issuance, delivery, registration of transfer,
exchange or repayment of the Certificate. Whenever reference is made in this
Agreement to the authentication of the Certificate by the Owner Trustee or the
Owner Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Owner Trustee by an authenticating agent
and a certificate of authentication executed on behalf of the Owner Trustee by
an authenticating agent. Each authenticating agent shall be subject to
acceptance by the Depositor.
(b) Any institution succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Owner
Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Owner Trustee and the Depositor. The Owner Trustee
may at any time terminate the agency of an authenticating agent by giving notice
of termination to such authenticating agent and to the Depositor. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
an authenticating agent shall cease to be acceptable to the Owner Trustee or the
Depositor, the Owner Trustee promptly may appoint a successor authenticating
agent with the consent of the Depositor. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent.
(d) The Depositor shall pay the authenticating agent from time to time
reasonable compensation for its services under this Section 3.6.
(e) The provisions of Sections 6.1, 6.3, 6.4, 6.6, 7.1 and 7.2 shall
be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 3.6, the
Certificate may have endorsed thereon, in lieu of the Owner Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is the Certificate referred to in the within-mentioned Trust
Agreement.
or
WILMINGTON TRUST COMPANY WILMINGTON TRUST COMPANY
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not in its individual capacity not in its individual capacity
but solely as Owner Trustee for the Chase but solely as Owner Trustee for
Credit Card Owner Trust 2001-6 the Chase Credit Card Owner Trust
2001-6
By: ____________________________
Authenticating Agent
By: ______________________________ By: ____________________________
Authorized Signatory Authorized Signatory
SECTION 3.7. Actions of Certificateholder. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by the Certificateholder may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by the Certificateholder in person or by agent duly appointed in writing; and
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Owner Trustee
and, when required, to the Depositor or the Servicer. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Agreement and conclusive in favor of the Owner Trustee,
the Depositor and the Servicer, if made in the manner provided in this Section
3.7.
(b) The fact and date of the execution by the Certificateholder of any
such instrument or writing may be proved in any reasonable manner which the
Owner Trustee deems sufficient.
(c) The Owner Trustee may require such additional proof of any matter
referred to in this Section 3.7 as it shall deem necessary.
ARTICLE IV.
ACTIONS BY OWNER TRUSTEE
SECTION 4.1. Prior Notice to Certificateholder with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholder in writing of the proposed
action:
(a) the initiation of any claim or lawsuit on behalf of the Owner
Trust (except claims or lawsuits brought to collect on the Series Certificate)
and the compromise of any
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material action, claim or lawsuit brought by or against the Owner Trust or the
Owner Trustee (except with respect to the aforementioned claims or lawsuits to
collect on the Series Certificate);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholder;
(d) the amendment, change or modification of the Deposit and
Administration Agreement, except any amendment where the consent of the
Certificateholder is not required under the terms of the Deposit and
Administration Agreement; or
(e) the appointment pursuant to the Indenture of a successor Indenture
Trustee or the consent to the assignment by the Note Registrar, the Paying
Agent, the Indenture Trustee or the Certificate Registrar of its obligations
under the Indenture.
The Owner Trustee shall notify the Certificateholder in writing of any
appointment of a successor Paying Agent, Authenticating Agent or Certificate
Registrar within five Business Days thereof.
ARTICLE V.
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.1. General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Owner Trustee,
on behalf of the Owner Trust, is to be a party and each certificate or other
document required to be executed on behalf of the Owner Trust that is attached
as an exhibit to or contemplated by the Basic Documents or any amendment thereto
or other agreement, in each case, in such form as the Depositor shall approve as
evidenced conclusively by the Owner Trustee's execution thereof and the
Depositor's execution of the related documents. In addition to the foregoing,
the Owner Trustee is authorized to take all actions required to be taken on
behalf of the Owner Trust pursuant to the Basic Documents. The Owner Trustee is
further authorized from time to time to take such action as the Administrator
directs in writing with respect to the Basic Documents, except to extent that
the Basic Documents expressly require the consent of the Depositor for such
action.
SECTION 5.2. General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the other Basic Documents and to administer the
Owner Trust in the interest of the Certificateholder, subject to the Basic
Documents and in accordance with the provisions of
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this Agreement. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the Deposit
and Administration Agreement to perform any act or to discharge any duty of
the Owner Trustee hereunder or under any other Basic Document, and the Owner
Trustee shall not be liable for the default or failure of the Administrator to
carry out its obligations under the Deposit and Administration Agreement.
SECTION 5.3. Action upon Instruction. (a) The Certificateholder may, by
written instruction, direct the Owner Trustee in the management of the Owner
Trust. Such direction may be exercised at any time by written instruction of the
Certificateholder.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
required to take any action hereunder or under any other Basic Document if the
Owner Trustee shall reasonably determine, or shall have been advised by counsel
in writing, that such action is likely to result in personal liability to the
Owner Trustee (in such capacity or individually), is contrary to the terms of
this Agreement or any other Basic Document or is contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document or is unsure as to the application of any provision of this
Agreement or any other Basic Document, or if any such provision is ambiguous as
to its application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholder
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholder received, the Owner Trustee shall not be
liable on account of such action to any Person. If the Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or within
such shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the other Basic Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
SECTION 5.4. No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall undertake to perform such duties and only
such duties as are specifically set forth in this Agreement and the other Basic
Documents, and no implied covenants or obligations shall be read into this
Agreement or the other Basic Documents. The Owner Trustee shall not have any
duty or obligation to manage, make any payment with respect to, register,
record, sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Owner Trustee is a party, except
as expressly provided by the terms of this
11
Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 5.3; and no implied duties or obligations shall be
read into this Agreement or any other Basic Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any filing for the Owner Trust
with the Securities and Exchange Commission or to record this Agreement or any
other Basic Document. The Owner Trustee nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any Liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee, in its individual capacity,
that are not related to the ownership or the administration of the Owner Trust
Estate.
SECTION 5.5. 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 Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents,
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 5.3.
SECTION 5.6. Restrictions. The Owner Trustee shall not (a) take any
action that is inconsistent with the purposes of the Owner Trust set forth in
Section 2.3 or (b) take any action or amend this Agreement in any manner that,
to the actual knowledge of a Responsible Officer of the Owner Trustee, would
result in the Owner Trust becoming taxable as a corporation for United States
federal income tax purposes. The Certificateholder shall not direct the Owner
Trustee to take action that would violate the provisions of this Section.
SECTION 5.7. Doing Business in Other Jurisdictions. (a)
Notwithstanding anything contained herein to the contrary, the Owner Trustee
shall not be required to take any action in any jurisdiction other than in the
State of Delaware, other than as set forth in the last sentence of this Section
5.7, if the taking of such action will (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivisions thereof in existence on the date
hereof other than the State of Delaware becoming payable by the Owner Trustee;
or (iii) subject the Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware for causes of action arising from acts
unrelated to the consummation of the transactions by the Owner Trustee, as the
case may be, contemplated hereby. The Owner Trustee shall be entitled to obtain
advice of counsel (which advice shall be an expense of the Depositor) to
determine whether any action required to be taken pursuant to this Agreement
results in the consequences described in clauses (i), (ii) and (iii) of the
preceding sentence. In the event that said counsel advises the Owner Trustee
that such action will result in such consequences, the Owner Trustee will, at
the expense
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of the Depositor, appoint an additional trustee pursuant to Section 9.5 to
proceed with such action.
ARTICLE VI.
CONCERNING OWNER TRUSTEE
SECTION 6.1. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Owner Trust Estate upon the terms of the other Basic Documents and
this Agreement. The Owner Trustee shall not be answerable or accountable
hereunder or under any Basic Document under any circumstances, except (i) for
its own willful misconduct, bad faith or gross negligence or (ii) in the case of
the breach of any representation or warranty contained in Section 6.3 expressly
made by the Owner Trustee. In particular, but not by way of limitation (and
subject to the exceptions set forth in the preceding sentence):
(a) The Owner Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Owner Trustee unless it is
proved that the Owner Trustee was grossly negligent in ascertaining the
pertinent facts;
(b) The Owner Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with the instructions of
the Certificateholder given pursuant to Section 5.3;
(c) No provision of this Agreement or any other Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in its own performance of any of its rights or powers
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured or provided to it;
(d) Under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) The Owner Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for or in
respect of the validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Certificate, shall not be accountable for
the use or application by the Depositor of the proceeds from the Certificate,
and the Owner Trustee shall
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in no event assume or incur any liability, duty or obligation to any
Noteholder or to the Certificateholder, other than as expressly provided for
herein and in the other Basic Documents;
(f) The Owner Trustee shall not be liable for the default or
misconduct of the Indenture Trustee, the Administrator or the Servicer under any
of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations to be performed on behalf of
the Owner Trust under this Agreement or the other Basic Documents that are
required to be performed by the Administrator under the Deposit and
Administration Agreement or the Indenture Trustee under the Indenture;
(g) The Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any other Basic Document, at the request, order or direction of the
Certificateholder, unless the Certificateholder has offered to the Owner Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any other Basic Document shall not be construed as a duty, and
the Owner Trustee shall not be answerable for other than its gross negligence,
bad faith or willful misconduct in the performance of any such act; and
(h) The Owner Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Owner Trustee that shall be specifically required to be furnished
pursuant to any provision of this Agreement or the other Basic Documents, shall
examine them to determine whether they conform to the requirements of this
Agreement or such other Basic Document; provided, however, that the Owner
Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished to the Owner Trustee pursuant to this Agreement or the
other Basic Documents.
SECTION 6.2. Furnishing of Documents. The Owner Trustee shall furnish
to the Certificateholder promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents.
SECTION 6.3. Representations and Warranties. Wilmington Trust Company,
in its individual capacity, hereby represents and warrants to the Depositor, for
the benefit of the Certificateholder, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of the State of Delaware and having an office
within the State of Delaware. It has all requisite corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Agreement.
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(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
federal or Delaware law, governmental rule or regulation governing the banking
or trust powers of the Owner Trustee or any judgment, writ, decree or order
applicable to it, or constitute any default under its charter documents or
by-laws or, with or without notice or lapse of time, any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which any of its
properties may be bound.
(d) The execution, delivery and performance by Wilmington Trust
Company of this Agreement does not require the authorization, consent, or
approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any governmental authority or agency
of the State of Delaware or the United States of America regulating the
corporate trust activities of Wilmington Trust Company.
(e) This Agreement has been duly authorized, executed and delivered by
Wilmington Trust Company and shall constitute the legal, valid, and binding
agreement of Wilmington Trust Company, not in its individual capacity but solely
as Owner Trustee for the Chase Credit Card Owner Trust 2001-6, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization and other laws affecting the rights of
creditors generally, and by general principles of equity regardless of whether
enforcement is pursuant to a proceeding in equity or at law.
SECTION 6.4. Reliance; Advice of Counsel. (a) The Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to be signed
by the proper party or parties. The Owner Trustee may accept a certified copy of
a resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
method of the determination of which is not specifically prescribed herein, the
Owner Trustee may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer, secretary or other
authorized officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements
15
entered into with any of them, and the Owner Trustee shall not be liable for
the conduct or misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with due care and (ii)
may consult with counsel, accountants and other skilled persons knowledgeable
in the relevant area to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the written opinion or advice of any
such counsel, accountants or other such persons and not contrary to this
Agreement or any other Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created, Wilmington Trust
Company, not in its individual capacity but solely as Owner Trustee for the
Chase Credit Card Owner Trust 2001-6, acts solely as the Owner Trustee hereunder
and not in its individual capacity and all Persons having any claim against the
Owner Trustee by reason of the transactions contemplated by this Agreement or
any other Basic Document shall look only to the Owner Trust Estate for payment
or satisfaction thereof.
SECTION 6.6. Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of the Notes
and may deal with the Depositor, the Indenture Trustee and the Servicer in
banking transactions with the same rights as it would have if it were not the
Owner Trustee.
ARTICLE VII.
COMPENSATION OF OWNER TRUSTEE
SECTION 7.1. Owner Trustee's Fees and Expenses. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Depositor and the
Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by the
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder except any such
expenses as may arise from its gross negligence, wilful misfeasance, or bad
faith or that is the responsibility of the Certificateholder under this
Agreement.
SECTION 7.2. Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee (in such capacity or
individually) and its successors, assigns, agents and servants (collectively,
the "Indemnified Parties") from and against, any and all liabilities,
obligations, losses, damages, taxes, claims, actions and suits, and any and all
reasonable costs, expenses and disbursements (including reasonable legal fees
and expenses) of any kind and nature whatsoever (collectively, "Expenses") which
may at any time be imposed on, incurred by, or asserted against the Owner
Trustee or any Indemnified Party in
16
any way relating to or arising out of this Agreement, the other Basic
Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Depositor shall not be liable for or required to indemnify the Owner
Trustee from and against Expenses arising or resulting from any of the matters
described in the third sentence of Section 6.1. The indemnities contained in
this Section shall survive the resignation or termination of the Owner Trustee
or the termination of this Agreement. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any Indemnified Party in respect of which
indemnity may be sought pursuant to this Section 7.2, such Indemnified Party
shall promptly notify the Depositor in writing, and the Depositor upon request
of the Indemnified Party shall retain counsel reasonably satisfactory to the
Indemnified Party (or, with the consent of the Depositor, counsel selected by
the Indemnified Party acceptable to the Depositor) to represent the
Indemnified Party and any others the Depositor may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. The Depositor shall not be liable for any
settlement of any claim or proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the Depositor agrees to indemnify any Indemnified Party from and
against any loss or liability by reason of such settlement or judgment. The
Depositor shall not, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such proceeding.
SECTION 7.3. Payments to Owner Trustee. Any amounts paid to the Owner
Trustee pursuant to this Article VII shall be deemed not to be a part of the
Owner Trust Estate immediately after such payment.
ARTICLE VIII.
TERMINATION OF TRUST AGREEMENT
SECTION 8.1. Termination of Trust Agreement. (a) The Owner Trust shall
terminate upon the final distribution by the Owner Trustee of all moneys or
other property or proceeds of the Owner Trust Estate in accordance with the
terms of the Indenture and the Deposit and Administration Agreement; provided,
that in no event will the Owner Trust continue more than 21 years after the date
hereof. Any money or other property held as part of the Owner Trust Estate
following such distribution shall be distributed to the Certificateholder. The
bankruptcy, death, incapacity, liquidation, dissolution or termination of the
Depositor or Certificateholder (or any other beneficiary) shall not (x) operate
to revoke or terminate this Agreement or the Owner Trust, or (y) entitle the
Certificateholder's (or any other beneficiary) legal representatives to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all
17
or any part of the Owner Trust or Owner Trustee Estate or (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a) or 8.1(c), neither the
Depositor nor the Certificateholder shall be entitled to revoke or terminate the
Owner Trust.
(c) Except as provided in this Section 8.1(c), neither the Depositor
nor the Certificateholder shall be entitled to revoke or terminate the Owner
Trust or this Agreement. The Depositor and the Owner Trustee acknowledge that
the Indenture Trustee, on behalf of the Noteholders, is a third-party
beneficiary of this Agreement and shall be entitled to enforce the terms of this
Agreement to the same extent as if they were signatories hereto. For so long as
the Notes are outstanding, neither the Owner Trust nor this Agreement shall be
revoked without the prior written consent of the Indenture Trustee. The
Depositor and the Owner Trustee acknowledge that the Indenture Trustee, as an
agent of the Noteholders, maintains a legitimate interest in ensuring that the
Owner Trust is not revoked prior to the fulfillment of the Owner Trust
objectives. In no event may this Agreement be amended without the prior written
consent of the Indenture Trustee if the effect of such amendment is the
revocation or termination of this Owner Trust other than in accordance with this
Section 8.1.
ARTICLE IX.
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.1. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a corporation authorized to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authorities; and
having (or having a parent) which has a rating of at least Baa3 by ▇▇▇▇▇'▇, at
least BBB- by Standard & Poor's and, if rated by Fitch, at least BBB- by Fitch,
or if not rated, otherwise satisfactory to each Note Rating Agency. If such
corporation shall publish reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Owner Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Owner Trustee shall resign immediately in the manner and with
the effect specified in Section 9.2.
SECTION 9.2. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to the successor
Owner Trustee. If no successor Owner Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning
18
Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.1 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy of which shall be delivered to the successor Owner Trustee, and payment of
all fees owed to the outgoing Owner Trustee shall be made to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.3 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Note Rating Agencies.
SECTION 9.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.2 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement, with like effect as if originally named as the Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner Trustee
shall be eligible pursuant to Section 9.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice of the successor of such
Owner Trustee to the Certificateholder, the Indenture Trustee, the Noteholders
and the Note Rating Agencies. If the
19
Administrator shall fail to mail such notice within 10 days after acceptance
of appointment by the successor Owner Trustee, the successor Owner Trustee
shall cause such notice to be mailed at the expense of the Administrator.
SECTION 9.4. Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 9.1, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided
further that the Owner Trustee shall mail notice of such merger or consolidation
to the Note Rating Agencies.
SECTION 9.5. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate may at the time be located, the Administrator and the
Owner Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint at the expense of the Depositor one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Owner Trust, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 9.1 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Owner
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;
20
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Owner Trustee. Each such instrument shall be filed with the Owner
Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE X.
MISCELLANEOUS
SECTION 10.1. Supplements and Amendments. This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to the
Note Rating Agencies, without the consent of the Indenture Trustee, any of the
Noteholders or the Certificateholder, to cure any ambiguity or defect, to
correct or supplement any provisions in this Agreement or for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights of the
Noteholders or the Certificateholder; provided, however, that such amendment
will not (i) as evidenced by an Officer's Certificate of the Depositor addressed
and delivered to the Owner Trustee and the Indenture Trustee, materially and
adversely affect the interest of any Noteholder or the Owner Trust or
significantly change any of the Trust's permitted activities as described in
Section 2.3 and (ii) as evidenced by an Opinion of Counsel addressed and
delivered to the Owner Trustee and the Indenture Trustee, cause the Owner Trust
to be classified as an association (or a publicly traded partnership) taxable as
a corporation for federal income tax purposes; provided,
21
further, that the Depositor shall deliver written notice of such amendments to
each Note Rating Agency prior to the execution of any such amendment.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Note Rating Agencies,
with the prior written consent of the Holders of Notes evidencing not less than
a majority of the Outstanding Amount of the Notes for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the Noteholders or the
Certificateholder; provided that no such amendment shall (a) increase or reduce
in any manner the amount of, or accelerate or delay the timing of, collections
of payments in respect of the Series Certificate or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholder,
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes,
the Holders of which are required to consent to any such amendment.
Promptly after the execution of any amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to the Certificateholder, the Indenture Trustee and each of the Note
Rating Agencies.
It shall not be necessary for the consent of the Noteholders pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement. The Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 10.2. No Legal Title to Owner Trust Estate in
Certificateholder. The Certificateholder shall not have legal title to any
specific property in the Owner Trust Estate. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholder to and in
its ownership interest in the Owner Trust Estate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any specific property in the Owner Trust
Estate.
SECTION 10.3. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Depositor, the
Certificateholder and, to the extent expressly provided herein, the Indenture
Trustee, the Administrator and the Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under or
in respect of this Agreement or any covenants, conditions or provisions
contained herein.
22
SECTION 10.4. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight courier
or mailed certified mail, return receipt requested and shall be deemed to have
been duly given upon receipt, if to the Owner Trustee, addressed to Wilmington
Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attn: Corporate Trust Administration, if to the Depositor, addressed
to, Chase Manhattan Bank USA, National Association, Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
SECTION 10.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.6. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and the Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by the
Certificateholder shall bind the successors and assigns of the
Certificateholder.
SECTION 10.8. Nonpetition Covenants. Notwithstanding any prior
termination of the Owner Trust or this Agreement, each of the Owner Trustee (not
in its individual capacity) and the Certificateholder, by its acceptance of the
Certificate, covenants and agrees that it shall not at any time with respect to
the Owner Trust or the Master Trust, acquiesce, petition or otherwise invoke or
cause the Owner Trust or the Master Trust to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Owner Trust or the Master Trust under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, conservator, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Owner Trust or the Master Trust or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Owner Trust or the
Master Trust; provided, however, that this Section 10.8 shall not operate to
preclude any remedy described in Article V of the Indenture.
SECTION 10.9. No Recourse. The Certificateholder by accepting the
Certificate acknowledges that the Certificate does not represent and interest
in or obligation of the Depositor, the Administrator, the Owner Trustee (in
its individual capacity), the Indenture
23
Trustee or any Affiliate thereof, and no recourse may be had against such
parties or their assets, or against the assets pledged under the Indenture.
SECTION 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.12. Depositor Payment Obligation. The Depositor shall be
responsible for payment of the Administrator's fees under the Deposit and
Administration Agreement and shall reimburse the Administrator for all expenses
and liabilities of the Administrator incurred thereunder.
SECTION 10.13. Acceptance of Terms of Agreement. THE RECEIPT AND
ACCEPTANCE OF THE CERTIFICATE BY THE CERTIFICATEHOLDER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE CERTIFICATEHOLDER OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT, AND
SHALL CONSTITUTE THE AGREEMENT OF THE OWNER TRUSTEE, ON BEHALF OF THE OWNER
TRUST, THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE OWNER TRUSTEE AND THE CERTIFICATEHOLDER.
SECTION 10.14. Integration of Documents. This Agreement, together with
the Deposit and Administration Agreement, constitutes the entire agreement of
the parties hereto and thereto with respect to the subject matter hereof and
thereof and supersedes all prior agreements relating to the subject matter
hereof and thereof.
[Signature Page to Follow]
24
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. MacKelcon
-------------------------------
Name: ▇▇▇▇▇▇ ▇. MacKelcon
Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (OR ANY
INTEREST HEREIN) MAY NOT BE TRANSFERRED BY THE OWNER TO ANY PERSON.
CHASE CREDIT CARD OWNER TRUST 2001-6
OWNER CERTIFICATE
R-1
(This Certificate does not represent an interest in or obligation of Chase
Manhattan Bank USA, National Association, or any of its affiliates, except to
the extent described below.)
THIS CERTIFIES THAT Chase Manhattan Bank USA, National Association is the
registered owner of one hundred percent (100%) of the beneficial interest in the
Chase Credit Card Owner Trust 2001-6 (the "Owner Trust") created by Chase
Manhattan Bank USA, National Association, a national banking association (the
"Depositor").
The Owner Trust was created pursuant to the Chase Credit Card Owner Trust
2001-6 Trust Agreement dated as of December 17, 2001 (the "Trust Agreement"),
between the Depositor and Wilmington Trust Company, as owner trustee (the "Owner
Trustee"). To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Trust Agreement including,
as specified in Section 1.1(a).
This Certificate is the duly authorized Certificate evidencing the sole
beneficial interest in the Owner Trust (herein called the "Certificate"). This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. Three classes of Notes designated as Class A
Floating Rate Asset Backed Notes, Series 2001-6 (the "Class A Notes"), Class B
Floating Rate Asset Backed Notes, Series 2001-6 (the "Class B Notes") and Class
C Floating Rate Asset Backed Notes, Series 2001-6 (the "Class C Notes" and,
together with the Class A Notes and the Class B Notes, the "Notes") will be
issued under the Indenture dated as of December 17, 2001 between Wilmington
Trust Company, not in its individual capacity but solely as Owner Trustee for
the Owner Trust and The Bank of New York, as Indenture Trustee.
Notwithstanding any prior termination of the Trust Agreement, the
Certificateholder, by its acceptance of this Certificate, covenants and agrees
that it shall not at any time with respect to the Owner Trust, the Depositor or
the Master Trust, acquiesce, petition or otherwise invoke or
Exhibit A, Page 1
cause the Owner Trust, the Depositor or the Master Trust to invoke the process
of any court or government authority for the purpose of commencing or
sustaining a case against the Owner Trust, the Depositor or the Master Trust,
under any Federal or state bankruptcy, insolvency or similar law or appointing
a receiver, conservator, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Owner Trust, the Depositor or
the Master Trust, or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Owner Trust, the Depositor or
the Master Trust.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust
Agreement or the Deposit and Administration Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE OWNER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Owner Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
CHASE CREDIT CARD OWNER
TRUST 2001-6
WILMINGTON TRUST COMPANY
Not in its individual capacity
but solely as Owner Trustee for the Chase
Credit Card Owner Trust 2001-6
Dated: December 17, 2001 By: /s/ ▇▇▇▇▇▇ ▇. MacKelcon
------------------------
Name: ▇▇▇▇▇▇ ▇. MacKelcon
Title: Vice President
Exhibit A, Page 2
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Owner Trustee for the
Chase Credit Card Owner Trust 2001-6
By:
------------------------
Authorized Signatory
Exhibit A, Page 3
ANNEX 1 TO EXHIBIT A
Registered Owner and address:
Chase Manhattan Bank USA, National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
Annex 1 to Exhibit A, Page 1