CHASE CREDIT CARD OWNER TRUST 1999-_
TRUST AGREEMENT
between
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Depositor
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
Dated as of _____, 1999
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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 Issuer Property . . . . . . . . . . 5
SECTION 2.8 Situs of Issuer . . . . . . . . . . . . . . 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
Certificates . . . . . . . . . . . . . . . . 7
SECTION 3.6 Authenticating Agent . . . . . . . . . . . . 7
SECTION 3.7 Actions of Certificateholder . . . . . . . . 9
SECTION 3.8 Certificateholder Distributions . . . . . . . 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
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 10.9 No Recourse . . . . . . . . . . . . . . . . . . 23
SECTION 10.10 Headings . . . . . . . . . . . . . . . . . . . 23
SECTION 10.11 GOVERNING LAW . . . . . . . . . . . . . . . . . 23
SECTION 10.12 Depositor Payment Obligation . . . . . . . . . 24
SECTION 10.13 Acceptance of Terms of Agreement . . . . . . . 24
SECTION 10.14 Integration of Documents . . . . . . . . . . . 24
EXHIBITS
Exhibit A - Form of Certificate
Exhibit B - Form of Certificate of Trust
Exhibit C - Form of Certificate Depository Agreement
TRUST AGREEMENT dated as of ____, 1999 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 CHASE MANHATTAN BANK DELAWARE, 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 1999-__ Trust
Agreement, as the same may be amended, modified or otherwise supplemented
from time to time.
"Basic Documents" means the Indenture, the Certificate of Trust, this
Agreement, the Deposit and Administration Agreement, the Note Underwriting
Agreement and other documents delivered in connection herewith and
therewith.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. section3801, et seq., as the same may be amended from
time to time.
"Certificate" means the certificate evidencing the beneficial interest
of the Certificate in the Issuer Trust, substantially in the form attached
hereto as Exhibit A.
"Certificateholder" means Chase Manhattan Bank USA, National
Association, and its successors and permitted assigns.
"Certificate of Trust" means the Certificate of Trust in the form
attached hereto as Exhibit B which has been filed for the Owner Trust
pursuant to Section 3810(a) of the Business Trust Statute.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"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 ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Trust Department ; 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
Owner and the Transferor).
"Deposit and Administration Agreement" means the Deposit and
Administration Agreement, dated as of __________, 1999, between the Issuer
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.
"Issuer" means the Owner Trust.
"Owner Trust" means the 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 Trust
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 and the Owner Trust pursuant to the Deposit and
Administration Agreement.
"Owner Trustee" means Chase Manhattan Bank Delaware, 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.
"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.
(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 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 known as
"Chase Credit Card Owner Trust 1999-_" (hereinafter, the "Issuer") in which
name the Owner Trustee may conduct the business of such trust, make and
execute contracts and other instruments on behalf of such trust and ▇▇▇ and
be sued.
SECTION 2.2. Office. The office of the Issuer 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 Issuer
is, and the Issuer shall have the power and authority, to engage in the
following activities:
(a) to issue the Notes 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 distributions on the Notes and the
Certificate, 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 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 Issuer 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; 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.
The Issuer is hereby authorized to engage in the foregoing activities. The
Issuer shall not 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.
SECTION 2.4. Appointment of Owner Trustee. The Depositor
hereby appoints the Owner Trustee as trustee of the Issuer 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 Issuer
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 2.6. 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 Issuer under the Basic
Documents. It is the intention of the parties hereto that the Issuer
constitute a business trust under the Business Trust Statute and that this
Agreement constitute the governing instrument of such business trust. It
is the intention of the parties hereto that, solely for United States
income and franchise tax purposes, the Issuer shall be treated as a
security device and disregarded as an entity and its assets shall be
treated as owned by 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 and
to the extent not inconsistent herewith, in the Business Trust Statute with
respect to accomplishing the purposes of the Issuer. The Owner Trustee
shall file the Certificate of Trust with the Secretary of State of
Delaware.
SECTION 2.7. Title to Issuer Property. Legal title to all the
Owner Trust Estate shall be vested at all times in the Issuer as a separate
legal entity 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, in which case the title shall be deemed to be vested in the Owner
Trustee, a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.8. Situs of Issuer. The Issuer will be located and
administered in the State of Delaware. All bank accounts maintained by the
Owner Trustee on behalf of the Issuer shall be located in the State of
Delaware or the State of New York. Payments will be received by the Issuer
only in Delaware or New York, and payments will be made by the Issuer only
from Delaware or New York. The only office of the Issuer will be at its
office 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 Issuer, and the
Depositor has duly authorized such sale and assignment and deposit to
the Issuer by all necessary 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 Issuer.
ARTICLE III.
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.1. Initial Ownership. Upon the formation of the
Issuer by the contribution by the Depositor pursuant to Section 2.5, the
Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificate. The Certificate shall be issued
substantially in the form of Exhibit A, which is incorporated by reference.
The Certificate shall be executed on behalf of the Issuer 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 Issuer, 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 Chase, as 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.
SECTION 3.3. Execution, Authentication and Delivery of
Certificates. Concurrently with the initial deposit of the Series
Certificate with the Issuer pursuant to the Deposit and Administration
Agreement, the Owner Trustee shall cause the Certificate to be executed on
behalf of the Issuer, 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 on behalf of the
Issuer shall execute and the Owner Trustee, or Chase, as 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 Issuer, as if originally issued, whether or not the 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. The
Owner Trustee hereby appoints Chase as Authenticating Agent for the
authentication of the Certificate upon any registration of transfer or
exchange 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 (other than
Chase) 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 one of the Certificates referred to in the within
mentioned Agreement.
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By:
Authorized Officer
or
as Authenticating Agent
for the Owner Trustee
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.
SECTION 3.8. Certificateholder Distributions. The
Certificateholder shall be entitled to distributions in accordance with
Sections 2.7(a), 3.1, 4(b) and 8.2 hereunder.
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 by the Issuer
(except claims or lawsuits brought to collect on the Series Certificate)
and the compromise of any material action, claim or lawsuit brought by or
against the Issuer (except with respect to the aforementioned claims or
lawsuits to collect on the Series Certificate);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under
the Business Trust Statute);
(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 Certificateholder;
(e) 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
(f) 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 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 Trust is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which
the Owner Trust is to be a party, 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, but shall not be obligated, to
take all actions required 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
requires 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 Issuer in the interest of the
Certificateholder, subject to the Basic 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 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 or the Issuer 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 Issuer. 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 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 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 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
Commission filing for the Issuer 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 Issuer
set forth in Section 2.3 or (b) take any action or amend this Agreement in
any manner that, to the best knowledge of a Responsible Officer of the
Owner Trustee, would result in the Issuer's 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 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 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 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 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 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 of the Issuer
under this Agreement or the 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 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. The Owner
Trustee 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.
(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 the Owner
Trustee 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 the Owner Trustee.
(e) This Agreement has been duly authorized, executed and
delivered by the Owner Trustee and shall constitute the legal, valid, and
binding agreement of the Owner Trustee, 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 Basic Documents, 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 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 Basic Document.
SECTION 6.5. Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created, Chase
Manhattan Bank Delaware 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 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
negligence, wilful misfeasance, or bad faith or that is the responsibility
of 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 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 Issuer
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 terms of the Indenture and the Deposit and
Administration Agreement. Any money or other property held as part of the
Owner Trust Estate following such distribution shall, after satisfaction of
all liabilities of the Issuer in accordance with Section 3808 of the
Business Trust Statute be distributed to the Depositor. The bankruptcy,
liquidation, dissolution, termination, death or incapacity of the
Certificateholder shall not (x) operate to terminate this Agreement or the
Issuer, or (y) entitle the Certificateholder 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 Issuer 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), neither the
Depositor nor the Owner shall be entitled to revoke or terminate the Owner
Trust.
(c) Upon the winding up of the Issuer in accordance with
the Business Trust Statute, 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
Business Trust Statute and thereupon the Issuer and this Agreement (other
than Article VII) shall terminate.
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. In addition, at all times the Owner Trustee or a
co-trustee shall be a person that satisfies the requirements of Section
3807(a) of the Business Trust Statute (the "Delaware Trustee").
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 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 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 Trustee, the
Noteholders and the Rating Agencies. 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.
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 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 or any Financed Vehicle 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 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 Issuer, 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. If
the Delaware Trustee shall become incapable of acting, resign or be
removed, unless the Owner Trustee is qualified to act as the Delaware
Trustee, a successor co-trustee shall promptly be appointed in the manner
specified in this Section 9.5 to act as the Delaware Trustee. 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 Issuer 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 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 Rating Agencies, without the consent of 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 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,
further, that the Depositor shall deliver written notice of such amendments
to each 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 Rating
Agencies, with the 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 each Certificateholder, the Indenture Trustee and
each of the 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.
Promptly after the execution of any amendment to the
Certificate of the Trust, the Owner Trustee shall cause the filing of such
amendment with the Secretary of State.
Prior to the execution of any amendment to this Agreement or
the Certificate of the Trust, 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
part of 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 part of 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 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 10.4. 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 Chase Manhattan Bank Delaware, Attn: Trust Department, 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 Issuer or this Agreement, the Owner Trustee (not
in its individual capacity) and the Certificateholder, by its acceptance of
the Certificate, shall not at any time with respect to the Issuer or the
Master Trust, acquiesce, petition or otherwise invoke or cause the Issuer
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
Issuer 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 Issuer or the Master Trust or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Issuer 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 an
interest in or obligation of the Depositor, the Administrator, the Owner
Trustee, the Indenture 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
TRUST THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER 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 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 Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
CHASE MANHATTAN BANK
DELAWARE,
as Owner Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Depositor
By:
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 1999-__
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 the Chase Credit Card Owner Trust 1999-__ (the
"Owner Trust") created by Chase Manhattan Bank USA, National Association, a
national banking association (the "Depositor").
The Owner Trust was created pursuant to (i) the filing of the
Certificate of Trust with the Secretary of State of the State of Delaware
and (ii) the Chase Credit Card Owner Trust 1999-__ Trust Agreement dated as
of ____________, 1999 (the "Trust Agreement"), between the Depositor and
Chase Manhattan Bank Delaware, 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 1.02(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 Owner by virtue of the acceptance hereof assents and by which
the Owner is bound. Three classes of Notes designated as "Class A Floating
Rate Asset Backed Notes, Series 1999-__" (the "Class A Notes"), Class B
Floating Rate Asset Backed Notes, Series 1999-__ (the "Class B Notes") and
Class C Floating Rate Asset Backed Notes, Series 1999-__ (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 __________, 1999
between 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 Issuer, the
Depositor or the Master Trust, acquiesce, petition or otherwise invoke or
cause the Issuer, 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 Issuer, 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 Issuer, 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 Issuer, 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 1999-__
CHASE MANHATTAN BANK
DELAWARE
Not in its individual capacity
but solely as Owner Trustee
Dated: _________________, 1999 By: ______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
CHASE MANHATTAN BANK DELAWARE or CHASE MANHATTAN BANK
DELAWARE
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
By: ______________________________
Authenticating Agent
By: ______________________________ By: ______________________________
Authorized Signatory Authorized Signatory
ANNEX 1 TO EXHIBIT A
Registered Owner and address:
Chase Manhattan Bank USA, National Association
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tax Identification Number:
EXHIBIT B
CERTIFICATE OF TRUST OF
CHASE CREDIT CARD OWNER TRUST 1999-__
THIS Certificate of Trust of Chase Credit Card Owner Trust 1999-__
(the "Trust"), is being duly executed and filed by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12
Del. C., section 3801 et seq.) (the "Act").
1. Name. The name of the business trust created hereby is Chase
Credit Card Owner Trust 1999-__.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Chase Manhattan Bank Delaware, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
3. Effective Date. This Certificate of Trust shall be effective
___________ __, 1999.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Trust in accordance with Section 3811(a)(2) of the Act.
CHASE MANHATTAN BANK DELAWARE
not in its individual capacity but
solely as Owner Trustee under a Trust
Agreement dated as of _________ __,
1999,
By: __________________________________
Name:
Title: