EXHIBIT 4.14
CHASE ISSUANCE TRUST
SECOND AMENDED AND RESTATED TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Transferor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of October 15, 2004
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.01 Capitalized Terms...........................................1
Section 1.02 Other Definitional Provisions...............................4
ARTICLE II ORGANIZATION
Section 2.01 Name........................................................5
Section 2.02 Office......................................................5
Section 2.03 Purpose and Powers; Owner Trust to Operate as a Single
Purpose Entity............................................5
Section 2.04 Appointment of Owner Trustee................................7
Section 2.05 Initial Capital Contribution of Trust Estate................7
Section 2.06 Declaration of Trust........................................7
Section 2.07 Title to Trust Property.....................................8
Section 2.08 Situs of Owner Trust........................................8
Section 2.09 Representations and Warranties of the Beneficiary...........8
ARTICLE III BENEFICIAL INTEREST
Section 3.01 Initial Ownership..........................................10
Section 3.02 Restrictions on Transfer...................................10
ARTICLE IV ACTIONS BY OWNER TRUSTEE
Section 4.01 Prior Notice to Beneficiary and Transferor with
Respect to Certain Matters...............................10
Section 4.02 Restrictions on Power......................................11
ARTICLE V AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01 General Authority..........................................11
Section 5.02 General Duties.............................................11
Section 5.03 Action Upon Instruction....................................12
Section 5.04 No Duties Except as Specified in this Agreement or
in Instructions..........................................12
Section 5.05 No Action Except under Specified Documents or
Instructions.............................................13
Section 5.06 Owner Trust Operation......................................13
Section 5.07 Restrictions...............................................14
ARTICLE VI CONCERNING THE OWNER TRUSTEE
Section 6.01 Acceptance of Trusts and Duties............................14
Section 6.02 Furnishing of Documents....................................16
Section 6.03 Representations and Warranties.............................16
Section 6.04 Reliance; Advice of Counsel................................16
Section 6.05 Not Acting in Individual Capacity..........................17
Section 6.06 Owner Trustee Not Liable for Notes or Collateral...........17
Section 6.07 Owner Trustee May Own Notes................................17
ARTICLE VII COMPENSATION OF OWNER TRUSTEE
Section 7.01 Owner Trustee's Fees and Expenses..........................18
Section 7.02 Indemnification............................................18
Section 7.03 Payments to the Owner Trustee..............................18
ARTICLE VIII TERMINATION OF TRUST AGREEMENT
Section 8.01 Termination of Trust Agreement.............................19
ARTICLE IX SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01 Eligibility Requirements for Owner Trustee.................19
Section 9.02 Resignation or Removal of Owner Trustee....................20
Section 9.03 Successor Owner Trustee....................................20
Section 9.04 Merger or Consolidation of Owner Trustee...................21
Section 9.05 Appointment of Co-Trustee or Separate Owner Trustee........21
ARTICLE X MISCELLANEOUS
Section 10.01 Supplements and Amendments.................................23
Section 10.02 No Legal Title to Owner Trust Estate in Beneficiary........24
Section 10.03 Limitations on Rights of Others............................24
Section 10.04 Notices....................................................24
Section 10.05 Severability...............................................24
Section 10.06 Separate Counterparts......................................24
Section 10.07 Successors and Assigns.....................................25
Section 10.08 Nonpetition Covenants......................................25
Section 10.09 No Recourse................................................25
Section 10.10 Headings...................................................25
Section 10.11 GOVERNING LAW..............................................25
Section 10.12 Acceptance of Terms of Agreement...........................25
Section 10.13 Integration of Documents...................................26
EXHIBITS
EXHIBIT A FORM OF CERTIFICATE OF TRUST
This CHASE ISSUANCE TRUST SECOND AMENDED AND RESTATED TRUST AGREEMENT
between CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION (successor to BANK ONE,
DELAWARE, NATIONAL ASSOCIATION), a national banking association organized
under the laws of the United States of America, as Transferor, and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as Owner Trustee, is made and
entered into as of October 15, 2004.
RECITALS
WHEREAS, the Beneficiary and the Owner Trustee have heretofore
created a statutory trust pursuant to The Delaware Statutory Trust Act by
filing the Certificate of Trust (as hereinafter defined) with the office of
the Secretary of State (as hereinafter defined), and entering into a Trust
Agreement, dated as of April 24, 2002 (the "Original Trust Agreement");
WHEREAS, the Beneficiary and the Owner Trustee have heretofore
entered into an Amended and Restated Trust Agreement, dated as of May 1, 2002
(the "Second Trust Agreement"), which amended and restated the Original Trust
Agreement;
WHEREAS, the parties hereto desire to continue the Trust (as
hereinafter defined) as a statutory trust under Statutory Trust Act (as
hereinafter defined) and to amend and restate the Second Trust Agreement of
the Trust in its entirety.
WHEREAS, all conditions precedent to the execution of this Agreement
have been complied with;
NOW, THEREFORE, the parties hereto hereby agree that effective on and
as of the date hereof, the Second Trust Agreement is hereby amended and
restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Capitalized Terms. Whenever used in this Agreement, the
following words and phrases shall have the following meanings, and the
definitions of such terms and phrases are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as the neuter
genders of such terms:
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Chase Issuance Trust Second Amended and
Restated Trust Agreement.
"Beneficial Interest" means the beneficial ownership interest of the
Beneficiary in the assets of the Trust which, with respect to each Asset Pool
shall be the Transferor Interest in that Asset Pool.
"Beneficiary" means Chase USA, in its capacity as beneficial owner of
the Owner Trust, and each Permitted Affiliate Transferee and other transferee
under Section 3.02.
"Certificate of Trust" means the Certificate of Trust of the Owner
Trust in the form attached hereto as Exhibit A which has been filed for the
Owner Trust pursuant to Section 3810(a) of the Statutory Trust Act, as amended
on October 15, 2004 with respect to the changing of the name of the Trust from
"Bank One Issuance Trust" to "Chase Issuance Trust."
"Chase USA" means Chase Manhattan Bank USA, National Association, a
national banking association, successor to Bank One, Delaware, National
Association (formerly known as First USA Bank, National Association).
"Code" means the Internal Revenue Code of 1986.
"Collateral Certificate" means an Investor Certificate issued
pursuant to a Pooling and Servicing Agreement and the related Series
Supplement.
"Corporate Trust Office" means, with respect to the Owner Trustee,
the principal corporate trust office of the Owner Trustee located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Trust Administration; or such other address as the Owner Trustee may designate
by notice to the Transferor, or the principal corporate trust office of any
successor Owner Trustee (the address of which the successor Owner Trustee will
notify the Beneficiary and the Transferor).
"Expenses" has the meaning specified in Section 7.02.
"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 Parties" has the meaning specified in Section 7.02.
"Indenture" means the Amended and Restated Indenture, dated as of
October 15, 2004, between the Owner Trust and the Indenture Trustee.
"Master Trust Servicer" means Chase USA or any successor servicer, in
its capacity as servicer pursuant to the applicable Pooling and Servicing
Agreement.
"Master Trust Trustee" means the trustee under the applicable Pooling
and Servicing Agreement and each successor trustee under such Pooling and
Servicing Agreement.
"Owner Trust" means the Delaware statutory trust created by this
Agreement and the filing of the Certificate of Trust.
"Owner Trust Estate" means all right, title and interest of the Owner
Trust in and to the property and rights assigned to the Owner Trustee pursuant
to Section 2.05 of this Agreement, Section 2.01 of the Transfer and Servicing
Agreement, the granting clause of the Indenture, the granting clause of each
Asset Pool Supplement, all monies, securities, instruments and other property
on deposit from time to time in the Bank Accounts and all other property of
the Owner Trust from time to time, including any rights of the Owner Trustee
and the Owner Trust pursuant to the Transfer and Servicing Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement (unless otherwise specified herein), and any successor Owner
Trustee hereunder.
"Permitted Affiliate Transferee" is defined in Section 3.02.
"Person" means any individual, corporation, estate, partnership,
limited liability company, limited liability partnership, joint venture,
association, joint-stock company, statutory trust, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Pooling and Servicing Agreement" means a pooling and servicing
agreement, indenture or other agreement relating to the issuance of securities
from time to time from a Master Trust and the servicing of the receivables in
such Master Trust.
"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
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).
"Responsible Officer" means any officer within the Corporate Trust
Office of the Owner Trustee (or any successor group of the Owner Trustee),
including any Vice President or any other officer of the Owner Trustee
customarily performing functions similar to those performed by any person who
at the time shall be an above-designated officer and who shall have direct
responsibility for the administration of this Agreement.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Act" means the Securities Act of 1933.
"Series Supplement" means a series supplement to a Pooling and
Servicing Agreement or similar document setting forth the terms of a
Collateral Certificate.
"Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ss. 3801, et seq.
"Transaction Documents" means the Indenture, any Indenture
Supplement, any Asset Pool Supplement, the Certificate of Trust, this
Agreement and the Transfer and Servicing Agreement and other documents
delivered in connection herewith and therewith.
"Transfer and Servicing Agreement" means the Amended and Restated
Transfer and Servicing Agreement, dated as of October 15, 2004, among the
Owner Trust, as Issuer, Chase USA, as Transferor, Servicer and Administrator,
and ▇▇▇▇▇ Fargo Bank, National Association, as Indenture Trustee and
Collateral Agent.
"Transferor" means Chase USA, in its capacity as Transferor hereunder
and its successors and assigns in such capacity.
Section 1.02 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise defined have the
meanings specified in the Transfer and Servicing Agreement or, if not defined
therein, in the Indenture.
(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.
(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 GAAP. 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 GAAP, 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; references to any
subsection, Section, clause, Schedule or Exhibit are references to
subsections, Sections, clauses, Schedules and Exhibits in or to this Agreement
unless otherwise specified; the term "including" means "including without
limitation"; references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; references to any Person include that Person's successors and
assigns; and references to any agreement refer to such agreement, as amended,
supplemented or otherwise modified from time to time.
ARTICLE II
ORGANIZATION
Section 2.01 Name. The Owner Trust created hereby shall be known as
"Chase Issuance Trust," in which name the Owner Trustee may conduct the
business of the Owner Trust, make and execute contracts and other instruments
on behalf of the Owner Trust and ▇▇▇ and be sued.
Section 2.02 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 in
the State of Delaware as the Owner Trustee may designate by written notice to
the Beneficiary and the Transferor.
Section 2.03 Purpose and Powers; Owner Trust to Operate as a Single
Purpose Entity. The purpose of the Owner Trust is to engage in the following
activities:
(a) to acquire Collateral Certificates from Chase USA or any special
purpose vehicle established by Chase USA or any of its Affiliates;
(b) to acquire Receivables from Chase USA or any special purpose
vehicle established by Chase USA or any of its Affiliates;
(c) from time to time, to grant a security interest in the Collateral
Certificates and the Receivables, and grant a security interest in accounts
established for the benefit of indebtedness of the Owner Trust, all to secure
indebtedness of the Owner Trust, or make any permitted transfer of interests
in any Receivables or in any portion of the Invested Amount of a Collateral
Certificate directly or beneficially to any third party;
(d) from time to time, to authorize and approve the issuance of Notes
pursuant to the Indenture without limitation as 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:
(i) determining the principal amount of the Notes;
(ii) determining the legal maturity date of the Notes;
(iii) determining the rate of interest, if any, to be paid
on the Notes;
(iv) determining the price or prices at which such Notes
will be sold by the Owner Trust;
(v) determining the provisions, if any, for the redemption
or amortization of such Notes;
(vi) 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;
(vii) preparing and filing all documents necessary or
appropriate in connection with the registration of the Notes under
the Securities Act of 1933, the qualification of indentures under the
Trust Indenture Act of 1939 and the qualification under any other
applicable federal, foreign, state, local or other governmental
requirements;
(viii) preparing any registration statement or
prospectus or other descriptive material relating to the issuance of
the Notes;
(ix) listing the Notes on any United States or foreign stock
exchange;
(x) entering into one or more interest rate or currency
swaps, caps, collars, guaranteed investment contracts or other
derivative agreements with counterparties (which may include, without
limitation, Chase USA or any of its Affiliates) to manage interest
rate or currency risk relating to the Notes;
(xi) entering into one or more supplemental credit
enhancement agreements or liquidity agreements;
(xii) appointing a paying agent or agents for purposes of
payments on the Notes; and
(xiii) arranging for the underwriting, subscription,
purchase or placement of the Notes and selecting underwriters,
managers and purchasers or agents for that purpose;
(e) from time to time receive payments and proceeds with respect to
any Collateral Certificates and any Receivables and the Indenture and either
invest or distribute those payments and proceeds;
(f) from time to time make deposits to and withdrawals from accounts
established under the Indenture;
(g) from time to time make and receive payments pursuant to
derivative agreements, supplemental credit enhancement agreements or liquidity
agreements;
(h) from time to time make payments on the Notes;
(i) 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;
(j) 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 Owner Trust being party to any of the agreements contemplated in
clauses (a) through (i) above; and
(k) subject to compliance with the Transaction 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 Noteholders and
the Transferor, which activities shall not be contrary to the status of the
Owner Trust as a qualified special purpose entity.
In connection with any of the foregoing, the Owner Trust may (x)
execute and deliver, and/or accept, such instruments, agreements,
certificates, UCC 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. The Owner Trust shall not engage
in any activity other than in connection with the foregoing or other than as
required or authorized by the terms of the Transaction Documents.
Section 2.04 Appointment of Owner Trustee. The Beneficiary hereby
appoints Wilmington Trust Company as Owner Trustee of the Owner Trust
effective as of the date hereof, to have all the rights, powers and duties set
forth herein and in the Statutory Trust Act.
Section 2.05 Initial Capital Contribution of Trust Estate. The
Beneficiary hereby assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Beneficiary, as of the date hereof, of
the foregoing contribution, which shall constitute the initial Owner Trust
Estate and shall be held by the Owner Trustee. The Beneficiary shall pay
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.
Section 2.06 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 sole use and benefit of the Beneficiary,
subject to the obligations of the Owner Trust under the Transaction Documents
to which it is a party. It is the intention of the parties hereto that the
Owner Trust constitute a statutory trust under the Statutory Trust Act and
that this Agreement, together with the Transfer and Servicing Agreement,
constitute the governing instrument of such statutory trust. It is the
intention of the parties hereto that, for income and franchise tax purposes,
the Owner Trust shall be treated as a security device and disregarded as an
entity and its assets shall be treated as owned in whole by the Transferor.
The parties hereto agree that they will take no action contrary to the
foregoing intention. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein, to the extent not
inconsistent with the Statutory Trust Act.
Section 2.07 Title to Trust Property. Legal title to all of the Owner
Trust Estate shall be vested at all times in the Owner Trust as a separate
legal entity until this Agreement terminates pursuant to Article VIII, except
where applicable law in any jurisdiction requires title to any part of the
Owner Trust Estate to be vested in a trustee or trustees of a trust, in which
case title to that part of the Owner Trust Estate shall be deemed to be vested
in the Owner Trustee, a co-trustee and/or a separate trustee, as the case may
be.
Section 2.08 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. The Owner Trust shall not have any
employees in any state other than Delaware; provided, however, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees
within or without the State of Delaware. Payments will be received by the
Owner Trust only in Delaware or New York, and payments 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 in Delaware.
Section 2.09 Representations and Warranties of the Beneficiary. The
Beneficiary hereby represents and warrants to the Owner Trustee that:
(a) The Beneficiary is a national banking association duly organized
and validly existing in good standing under the laws of the United States of
America and has the power and authority to own its properties and to conduct
its business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its obligations under
this Agreement.
(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 in any material respect, 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 any holder
of Notes issued by the Owner Trust; 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 of this Agreement and the consummation
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
Owner Trust pursuant to Section 2.05 of this Agreement, Section 2.01 of the
Transfer and Servicing Agreement, the granting clause of the Indenture and the
granting clause of each Asset Pool Supplement.
(d) The execution and delivery of this Agreement, the performance of
the transactions contemplated by this Agreement and the fulfillment of the
terms hereof will not conflict with, result in 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 obligations under this Agreement).
(e) The execution and delivery of this Agreement, the performance of
the transactions contemplated by this Agreement and the fulfillment of the
terms hereof will not conflict with or violate any Requirements of Law
applicable to the Transferor.
(f) There are no proceedings or investigations pending or, to the
best knowledge of the Beneficiary, threatened against the Beneficiary before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over the Beneficiary (i)
asserting the invalidity of any of the Transaction Documents to which the
Beneficiary is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by any of the Transaction Documents, to which the
Beneficiary is a party, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Beneficiary, would materially and adversely affect
the performance by the Beneficiary of its obligations under the Transaction
Documents to which the Beneficiary is a party, or (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of the Transaction Documents to which the
Beneficiary is a party.
ARTICLE III
BENEFICIAL INTEREST
Section 3.01 Initial Ownership. Upon the creation of the Owner Trust
by the contribution pursuant to Section 2.05, the Beneficiary shall be the
sole beneficial owner of the Owner Trust.
Section 3.02 Restrictions on Transfer. Transfers of the Beneficial
Interest may be made between the Transferor and any other Person who is an
Affiliate of the Transferor (a "Permitted Affiliate Transferee") only upon
delivery to the Master Trust Trustee and the Owner Trustee of a Master Trust
Tax Opinion and an Issuer Tax Opinion, respectively, with respect to such
transfer. The Beneficiary may not sell, participate, transfer, assign,
exchange or otherwise pledge or convey all or any part of its right, title and
interest in and to the Beneficial Interest to any other Person, except to any
Permitted Affiliate Transferee. Any purported transfer by the Beneficiary of
all or any part of its right, title and interest in and to the Beneficial
Interest to any Person will be effective only upon the issuance of a Master
Trust Tax Opinion and an Issuer Tax Opinion (each as defined in the
Indenture), which will not be an expense of the Owner Trustee and the
satisfaction of any additional conditions to the designation of an Additional
Transferor provided in Section 2.07 of the Transfer and Servicing Agreement.
To the extent permitted by applicable law, any purported transfer by the
Beneficiary of all or any part of its right, title and interest in and to the
Beneficial Interest which is not in compliance with the terms of this Section
3.02 will be null and void.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE
Section 4.01 Prior Notice to Beneficiary and Transferor with Respect
to Certain Matters. With respect to the following matters, the Owner Trustee
shall not take action unless at least 30 days (or such lesser time as shall be
agreed upon in writing by the Beneficiary and the Transferor) before the
taking of such action the Owner Trustee shall have notified the Beneficiary
and the Transferor:
(a) the initiation of any claim or lawsuit by the Owner Trust (other
than an action to collect on any Receivable) and the settlement of any action,
claim or lawsuit brought by or against the Owner Trust (other than an action
to collect on any Receivable);
(b) the election by the Owner Trust to file an amendment to the
Certificate of Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(d) 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 Beneficiary or the
Transferor;
(e) the amendment, change or modification of the Transfer and
Servicing Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner that would not materially adversely affect the
interests of the Beneficiary; or
(f) the appointment pursuant to the Indenture of a replacement or
successor Note Registrar or Indenture Trustee, or the consent to the
assignment by the Note Registrar or Indenture Trustee of its obligations under
the Indenture.
Section 4.02 Restrictions on Power. The Owner Trustee shall not be
required to take or refrain from taking any action if such action or inaction
would be contrary to any obligation of the Owner Trust or the Owner Trustee
under any of the Transaction Documents or would be contrary to Section 2.03.
ARTICLE V
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 5.01 General Authority. Each of the Owner Trustee, the
Beneficiary and the Administrator is authorized and directed to execute and
deliver the Transaction Documents to which the Owner Trust is to be a party
and each certificate or other document attached as an exhibit to or
contemplated by the Transaction Documents to which the Owner Trust is to be a
party, or other agreement, in each case, in such form as the Beneficiary shall
approve as evidenced conclusively by the Owner Trustee's execution thereof,
the Beneficiary's execution thereof or the Administrator's execution thereof.
Each of the Owner Trustee, the Beneficiary and the Administrator is authorized
to execute and deliver registration statements or other documents required to
be filed with the Securities and Exchange Commission. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, to
take all actions required of the Owner Trust pursuant to the Transaction
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
Transaction Documents, except to the extent that the Transaction Documents
expressly require the consent of the Beneficiary for any such action taken in
good faith.
Section 5.02 General Duties. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and to administer the Owner Trust in
the interest of the Beneficiary, subject to the Transaction Documents and in
accordance with the provisions of this Agreement. Notwithstanding the
foregoing, the Owner Trustee shall be deemed to have discharged its duties and
responsibilities hereunder to the extent the Administrator has agreed in the
Transfer and Servicing Agreement to perform any act or to discharge any duty
of the Owner Trustee or the Owner Trust under any Transaction Document, and
the Owner Trustee shall not be liable for the default or failure of the
Administrator to carry out its obligations under the Transfer and Servicing
Agreement.
Section 5.03 Action Upon Instruction.
(a) The Owner Trustee shall not be required to take any action
hereunder if the Owner Trustee shall have reasonably determined, or shall have
been advised by counsel, that such action is likely to result in liability on
the part of the Owner Trustee or is contrary to the terms of any Transaction
Document or is otherwise contrary to law.
(b) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of any
Transaction Document, the Owner Trustee shall promptly give notice (in such
form as shall be appropriate under the circumstances) to the Beneficiary
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 Beneficiary received, the Owner Trustee shall not be liable
on account of such action to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten (10) days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action, not inconsistent with the
Transaction Documents, as it shall deem to be in the best interest of the
Beneficiary, and shall have no liability to any Person for any such action or
inaction taken in good faith.
(c) In the event that the Owner Trustee is unsure as to the
application of any provision of any Transaction Document or any such provision
is ambiguous as to its application, or is, or appears to be, in conflict with
any other applicable provision, or in the event that this Agreement permits
any determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Beneficiary requesting
instruction and, to the extent that the Owner Trustee acts or refrains from
acting in good faith in accordance with any such instruction received, the
Owner Trustee shall not be liable, on account of such action or inaction, to
any Person. If the Owner Trustee shall not have received appropriate
instruction within 10 days of such notice (or within such shorter period of
time as reasonably may be specified in such notice or may be necessary under
the circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with the Transaction Documents, as it
shall deem to be in the best interests of the Beneficiary, and shall have no
liability to any Person for such action or inaction.
Section 5.04 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the 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 Trust is a party, except as expressly provided by
the terms of the Transaction Documents or in any document or written
instruction received by the Owner Trustee pursuant to Section 5.03 and no
implied duties or obligations shall be read into any Transaction Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
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 Securities
and Exchange Commission filing for the Owner Trust or to record any
Transaction 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 5.05 No Action Except under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the 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
Transaction Documents and (iii) in accordance with any document or instruction
delivered to the Owner Trustee pursuant to Section 5.03.
Section 5.06 Owner Trust Operation. The operations of the Owner Trust
will be conducted in accordance with the following standards:
(a) the Owner Trust will act solely in its own name through the Owner
Trustee or the Beneficiary;
(b) the Owner Trust will not incur any indebtedness for money
borrowed or incur any obligations except in connection with the purposes set
forth in Section 2.03 of this Agreement;
(c) except to the extent otherwise permitted by the Transaction
Documents, the Owner Trust's funds and assets will at all times be maintained
separately from those of the Beneficiary and its Affiliates;
(d) the Owner Trust will take all reasonable steps to continue its
identity as a separate legal entity and to make it apparent to third persons
that it is an entity with assets and liability distinct from those of the
Beneficiary, the Beneficiary's Affiliates or any other third person, and will
use stationery and other business forms of the Owner Trustee or the Owner
Trust and not that of the Beneficiary or any of its Affiliates, and will use
its best efforts to avoid the appearance (i) of conducting business on behalf
of the Beneficiary or any Affiliates thereof, or (ii) that the assets of the
Owner Trust are available to pay the creditors of the Beneficiary or any
Affiliates thereof;
(e) the Owner Trust will not hold itself out as being liable for the
debts of the Beneficiary or any Affiliates thereof;
(f) the Owner Trust will not engage in any transaction with the
Beneficiary or any Affiliates thereof, except as required, or specifically
permitted, by this Agreement or unless such transaction is otherwise on terms
neither more favorable nor less favorable than the terms and conditions
available at the time to the Owner Trust for comparable transactions with
other Persons; and
(g) the Owner Trust will not enter into any voluntary bankruptcy or
insolvency proceeding without a finding by the Owner Trustee that the Owner
Trust's liabilities exceeds its assets or that the Owner Trust is unable to
pay its debts in a timely manner as they become due.
Section 5.07 Restrictions. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Owner Trust set forth
in Section 2.03 or (b) that, to the actual knowledge of a Responsible Officer
of the Owner Trustee, would result in the Owner Trust's becoming taxable as a
corporation for federal income tax purposes. The Beneficiary shall not direct
the Owner Trustee to take action that would violate the provisions of this
Section.
ARTICLE VI
CONCERNING THE OWNER TRUSTEE
Section 6.01 Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Owner Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Transaction
Documents. The Owner Trustee shall not be answerable or accountable under any
Transaction Document under any circumstances, except (i) for its own willful
misconduct, bad faith or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 6.03 expressly made by the
Owner Trustee in its individual capacity or (iii) for its failure to use
ordinary care in the handling of funds. 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 personally liable for any error of
judgment made in good faith by a Responsible Officer of the Owner Trustee so
long as the same will not constitute negligence, bad faith or willful
misconduct;
(b) the Owner Trustee shall not be personally liable with respect to
any act or omission of the Administrator or action taken or omitted to be
taken by it in good faith in accordance with the instructions of the
Administrator or the Beneficiary;
(c) no provision of this Agreement or any Transaction Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder, if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution hereof
by the Transferor or for the form, character, genuineness, sufficiency, value
or validity of any of the Owner Trust Estate or for or in respect of the
validity or sufficiency of the Transaction Documents and the Owner Trustee
shall in no event assume or incur any liability, duty, or obligation to any
Noteholder or to the Beneficiary, other than as expressly provided for herein;
(f) the Owner Trustee shall not be personally liable for the default
or misconduct of the Administrator, the Indenture Trustee or any Collateral
Agent under any of the Transaction Documents or otherwise, and the Owner
Trustee shall have no obligation or liability to perform the obligations of
the Owner Trust under the Transaction Documents that are required to be
performed by the Administrator under the Transfer and Servicing Agreement, the
Indenture Trustee under the Indenture or the applicable Collateral Agent under
the applicable Asset Pool Supplement;
(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, at the request, order or direction of the Beneficiary, unless
the Beneficiary 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 shall
not be construed as a duty, and the Owner Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of any such
act; and
(h) Notwithstanding anything contained herein to the contrary, the
Owner Trustee shall not be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will (i)
require the registration with, licensing by or the taking of any other similar
action in respect of, any state or other Governmental Authority or agency of
any jurisdiction other than the State of Delaware by or with respect to the
Owner Trustee; (ii) result in any fee, tax or other governmental charge under
the laws of any jurisdiction or any political subdivisions thereof in
existence on the date hereof other than the State of Delaware becoming payable
by the Owner Trustee; or (iii) subject the Owner Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes
of action arising from acts unrelated to the consummation of the transactions
by the Owner Trustee contemplated hereby. The Owner Trustee shall be entitled
to obtain advice of counsel (which advice shall be an expense of the
Transferor) to determine whether any action required to be taken pursuant to
the Agreement results in the consequences described in clauses (i), (ii) and
(iii) of the preceding sentence. In the event that said counsel advises the
Owner Trustee that such action will result in such consequences, the
Transferor shall appoint an additional trustee pursuant to Section 9.05 hereby
to proceed with such action.
Section 6.02 Furnishing of Documents. The Owner Trustee shall furnish
to the Beneficiary and the Indenture Trustee, promptly upon written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Transaction Documents.
Section 6.03 Representations and Warranties. The Owner Trustee, in
its individual capacity, hereby represents and warrants to the Transferor
that:
(a) It is a Delaware banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to
execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding
on it, or constitute any default under (i) its charter documents or by-laws or
(ii) any indenture, mortgage, contract, agreement or instrument to which it is
a party, which default referred to in this clause (ii) would have a material
adverse effect on the Owner Trustee's ability, in its individual capacity, to
perform its obligations under this Agreement.
(d) The Owner Trustee complies with all of the requirements of
Chapter 38, Title 12 of the Delaware Code relating to the qualification of a
trustee of a Delaware statutory trust.
Section 6.04 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting
upon any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper 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 conclusively rely on a certificate, signed
by the president or any vice president or by the treasurer or other authorized
officers of the relevant party, as to such fact or matter, and such
certificate shall constitute full protection to the Owner Trustee for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement, the Owner
Trustee (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such
agents or attorneys shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the written opinion or written advice of
any such counsel, accountants or other such persons.
Section 6.05 Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by any Transaction Document shall look only
to the Owner Trust Estate for payment or satisfaction thereof.
Section 6.06 Owner Trustee Not Liable for Notes or Collateral. The
recitals contained herein (other than the representations and warranties of
the Owner Trustee in Section 6.03) shall be taken as the statements of the
Transferor and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of the Notes or of any Transaction Document, of the Initial
Collateral Certificate, of any additional Collateral Certificates or related
documents. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Collateral Certificate or the perfection and priority of any security
interest in any Collateral Certificate or any Receivables or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Owner Trust Estate or its ability to generate the payments to be
distributed to the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Collateral
Certificate or any Receivables; the existence and contents of any Collateral
Certificate or any Receivables on any computer or other record thereof; the
validity of the assignment of any Collateral Certificate or any Receivables to
the Owner Trust or of any intervening assignment; the completeness of any
Collateral Certificate; the performance or enforcement of any Collateral
Certificate or any Receivables; the compliance by the Transferor with any
warranty or representation made under any Transaction Document or in any
related document or the accuracy of any such warranty or representation or any
action of the Administrator or the Indenture Trustee taken in the name of the
Owner Trustee.
Section 6.07 Owner Trustee May Own Notes. The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may deal with the Transferor, the Administrator and the Indenture Trustee in
banking transactions with the same rights as it would have if it were not
Owner Trustee.
ARTICLE VII
COMPENSATION OF OWNER TRUSTEE
Section 7.01 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 Transferor and
the Owner Trustee, and the Owner Trustee shall be entitled to be reimbursed by
the Transferor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
Section 7.02 Indemnification. To the fullest extent permitted by law,
the Transferor shall be liable as primary obligor for, and shall indemnify the
Owner Trustee 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 any way relating to or
arising out of the Transaction Documents, the Owner Trust Estate, the
acceptance and administration of the Owner Trust Estate or the action or
inaction of the Owner Trustee hereunder; provided that the Transferor shall
not be liable for or required to indemnify any Indemnified Party from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 6.01; provided further, that the Transferor shall
not be liable for or required to indemnify an Indemnified Party from and
against expenses arising or resulting from (i) the Indemnified Party's own
willful misconduct, bad faith or negligence, or (ii) the inaccuracy of any
representation or warranty contained in Section 6.03 made by the Indemnified
Party. The Owner Trustee's right to enforce such obligation shall be subject
to the provisions of Section 10.09. The indemnities contained in this Section
shall survive the resignation or termination of the Owner Trustee or the
termination of this Agreement. In the event of any claim, action or proceeding
for which indemnity will be sought pursuant to this Section, the Owner
Trustee's choice of legal counsel shall be subject to the approval of the
Transferor, which approval shall not be unreasonably withheld.
Section 7.03 Payments to the Owner Trustee. Any amounts paid to 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 8.01 Termination of Trust Agreement.
(a) The Owner Trust shall dissolve 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 Statutory Trust Act. Any money or other property
held as part of the Owner Trust Estate following such distribution shall be
distributed to the Beneficiary. The bankruptcy, liquidation, dissolution,
termination, death or incapacity of the Beneficiary shall not (x) operate to
terminate this Agreement or the Owner Trust, or (y) entitle the Beneficiary's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of
the Owner Trust or Owner Trust Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except as provided in subsection 8.01(a), neither the Transferor
nor the Beneficiary shall be entitled to revoke or terminate the Owner Trust.
(c) Upon the winding up of the Owner Trust in accordance with the
Statutory Trust Act, the Owner Trustee shall cause the Certificate of Trust to
be canceled by filing a certificate of cancellation with the Secretary of
State in accordance with the provisions of Section 3810 of the Statutory Trust
Act and thereupon the Owner Trust and this Agreement (other than Article VII)
shall terminate.
ARTICLE IX
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 9.01 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be a trust company or a banking corporation
satisfying the provisions of Section 3807(a) of the Statutory Trust Act;
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 9.02.
Section 9.02 Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days' prior written notice thereof to the Administrator;
provided, however, that such resignation and discharge shall only be effective
upon the appointment of a successor Owner Trustee. Upon receiving such notice
of resignation, the 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 Owner Trustee may petition any court
of competent jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign after
written request therefor by the 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, but shall not be
required to, remove the Owner Trustee. If the Administrator shall remove the
Owner Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly (i) appoint a successor Owner Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the outgoing Owner Trustee so removed and one copy to the successor Owner
Trustee and (ii) pay all fees owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 9.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each Note Rating Agency.
Section 9.03 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to
the 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 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 9.03 unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, the Administrator shall mail notice of such to the
Beneficiary, the Transferor, the Indenture Trustee, each Collateral Agent, the
Noteholders and each Note Rating Agency. If the 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.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section such successor Owner Trustee shall file an amendment to the
Certificate of Trust with the Secretary of State reflecting the name and
principal place of business of such successor Owner Trustee in the State of
Delaware.
Section 9.04 Merger or Consolidation of Owner Trustee.
Notwithstanding anything herein to the contrary, any corporation into which
the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder (provided
that such corporation shall meet the eligibility requirements set forth in
Section 9.01), without the execution or filing of any instrument or any
further act on the part of any of the parties hereto; provided, further that
(a) the Owner Trustee shall mail notice of such merger or consolidation to
each Note Rating Agency and (b) the Owner Trustee shall file any necessary
amendments to the Certificate of Trust with the Secretary of State.
Section 9.05 Appointment of Co-Trustee or Separate Owner 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 one or more Persons approved by each of
the Administrator and the Owner Trustee to act as co-trustee, jointly with the
Owner Trustee, or separate trustee or separate trustees, of all or any part of
the Owner Trust Estate, and to vest in such Person, in such capacity, such
title to the Owner Trust Estate, 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 9.01 and no notice of
the appointment of any co-trustee or separate trustee shall be required
pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised
or performed by the Owner Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Owner
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed, the Owner Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties,
and obligations (including the holding of title to the 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;
(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 die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE X
MISCELLANEOUS
Section 10.01 Supplements and Amendments.
(a) This Agreement may be amended from time to time, including in
connection with the execution of additional indentures, by a written amendment
duly executed and delivered by the Beneficiary and the Owner Trustee, without
the consent of the Indenture Trustee or any of the Noteholders, upon issuance
of a Master Trust Tax Opinion and an Issuer Tax Opinion, which shall not be
expenses of the Owner Trustee; provided, however, that such amendment will not
(i) as evidenced by an Officer's Certificate of the Transferor addressed and
delivered to the Owner Trustee and the Indenture Trustee, be reasonably
expected to have an Adverse Effect (as defined in the Indenture) and is not
reasonably expected to have an Adverse Effect at any time in the future;
provided, further, however, that such amendment will not significantly change
the activities of the Owner Trust. The Owner Trustee will not be responsible
for determining whether such amendment to this Agreement will significantly
change the activities of the Owner Trust.
(b) This Agreement may also be amended from time to time, by a
written instrument executed by the Owner Trustee, at the written direction of
the Beneficiary, and the Beneficiary, with prior written notice to each Note
Rating Agency, upon issuance of a Master Trust Tax Opinion and an Issuer Tax
Opinion and (A) in the case of a significant change to Section 2.03 which the
Owner Trust reasonably believes will not have an Adverse Effect (as defined in
the Indenture), with the consent of holders of not less than a majority of the
Outstanding Dollar Principal Amount (as defined in the Indenture) of each
series, class or tranche of Notes affected by such change, and (B) in all
other cases, with the consent of holders of more than 66 2/3% of the Outstanding
Dollar Principal Amount of each series, class or tranche of Notes affected by
such change; provided, however, that, without the consent of the holders of
all of the Notes then outstanding, 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 any Collateral Certificate or any
Receivables or distributions that are required to be made for the benefit of
the Noteholders or (b) reduce the aforesaid percentage of the Outstanding
Dollar Principal Amount of the Notes, the holders of which are required to
consent to any such amendment.
Promptly after the execution of any such amendment or consent, the
Owner Trust shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee, each Collateral Agent and each
Note Rating Agency.
It shall not be necessary for the consent of the Noteholders or the
Beneficiary 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.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
The Owner Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officer's Certificate of the Owner Trust or the
Administrator to the effect that the amendment is authorized and that the
conditions to such amendment have been satisfied. The Owner Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
Owner Trustee's own rights, duties or immunities under this Agreement or
otherwise.
Section 10.02 No Legal Title to Owner Trust Estate in Beneficiary.
The Beneficiary shall not have legal title to any part of the Owner Trust
Estate. No transfer, by operation of law or otherwise, of any right, title,
and interest of the Beneficiary to and in its Beneficial 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 part of the Owner Trust Estate.
Section 10.03 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Owner Trustee, the Transferor, the
Beneficiary, the Administrator and, to the extent expressly provided herein,
the Indenture Trustee and the Noteholders, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Owner Trust Estate or under
or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
Section 10.04 Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days
after mailing if mailed by certified mail, postage prepaid (except that notice
to the Owner Trustee shall be deemed given only upon actual receipt by the
Owner Trustee), if to the Owner Trustee, addressed to the Corporate Trust
Office; if to the Transferor or the Beneficiary, addressed to Chase Manhattan
Bank USA, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention [ ], with a copy to JPMorgan Chase & Co., 1 Bank One Plaza,
Suite IL1 0460, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; or, as
to each party, at such other address as shall be designated by such party in a
written notice to each other party.
Section 10.05 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 10.06 Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 10.07 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Transferor, the Owner Trustee and its successors and the Beneficiary and its
successors and permitted assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other instrument or action by the Beneficiary
shall bind the successors and assigns of the Beneficiary.
Section 10.08 Nonpetition Covenants. To the fullest extent permitted
by applicable law, notwithstanding any prior termination of the Owner Trust or
this Agreement, the Owner Trustee (not in its individual capacity) and the
Beneficiary, by its acceptance of the Beneficial Interest, shall not at any
time with respect to the Owner Trust, the Beneficiary or any applicable Master
Trust, acquiesce, petition or otherwise invoke or cause the Owner Trust, the
Beneficiary or any applicable 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 Beneficiary or any applicable 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 Beneficiary or any
applicable Master Trust or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of the Owner Trust, the
Beneficiary or any applicable Master Trust; provided, however, that this
Section 10.08 shall not operate to preclude any remedy described in Article V
of the Indenture.
Section 10.09 No Recourse. The Beneficiary by accepting the
Beneficial Interest acknowledges that the Beneficial Interest does not
represent an interest in or obligation of the Transferor, the Administrator,
the Owner Trustee (in its individual capacity), the Indenture Trustee, any
Collateral Agent or any Affiliate thereof, and no recourse may be had against
such parties or their assets, or against the assets pledged under the
Indenture or the applicable Asset Pool Supplement, except as expressly
provided in the Transaction Documents.
Section 10.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.12 Acceptance of Terms of Agreement. THE RECEIPT AND
ACCEPTANCE OF THE BENEFICIAL INTEREST BY THE BENEFICIARY, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE BENEFICIARY OF ALL THE TERMS AND PROVISIONS OF
THIS AGREEMENT, AND SHALL CONSTITUTE THE AGREEMENT OF THE OWNER TRUST THAT THE
TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE OWNER TRUST AND THE BENEFICIARY.
Section 10.13 Integration of Documents. This Agreement, together with
the Transfer and Servicing Agreement, constitutes the entire agreement of the
parties hereto and thereto with respect to the subject matter hereof and
thereof and supercedes all prior agreements relating to the subject matter
hereof and thereof.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
------------------------------
Name:
Title:
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Beneficiary and as
Transferor
By:
------------------------------
Name:
Title:
Exhibit A
FORM OF
CERTIFICATE OF TRUST OF CHASE ISSUANCE TRUST
This Certificate of Trust of Bank One Issuance Trust (the "Trust"),
has been duly executed and is being filed by the undersigned, as trustee, to
create a statutory trust under The Delaware Statutory Trust Act (12 Del. C.,
ss. 3801 et seq.) (the "Act"),
1. Name. The name of the statutory trust created hereby is Bank One
Issuance Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust shall be effective April
24, 2002.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811 (a)(1) of the Act.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
--------------------------------
Name:
Title: